J.K. Misra, J.
1. The plaintiff having lost his cause in both the courts below has come up with the present Second Appeal. Defendant No. 1, who is meanwhile dead, was the Mahant of the Samadhi Math at Puri. On 29-11-1944, the said Mahant executed a will 'Ext. 1' nominating the plaintiff as his successor. On 12-7-1952, he cancelled Ext. 1 by another deed (Ext. D). On that very day, he executed a will Ext. E nominating defendant No. 2 as his successor.
On the same day, that is, 12-7-1952, the plaintiff brought a suit against defendant No. 1 for declaration that he was not in his proper senses and was incompetent to act as the Mahant and; that the plaintiff, as his legal heir -and successor, was entitled to act as the Mahant in his place, having been nominated by a valid will which had long since been acted upon, (vide plaint Ext. A (1)). This suit was, however, not actively proceeded' with and the plaintiff instituted another suit (vide plaint Ext. A) for a permanent injunction restraining defendant No. 1 from interfering with the management of the Samadhi Math by the plaintiff.
While this suit was pending (it was subsequently abandoned) the suit under appeal was instituted For a declaration that the cancellation of the plaintiff's nomination and the debarring of the plaintiff thereby from being the future Mahant was illegal. During the pendency of the last suit, defendant No. 1 died and no substitution was made in his place. This suit was valued at Rs. 200/- for purpose of court-fee and jurisdiction. After the death of defendant No. 1, the plaint was amended in certain minor aspects, but no consequential relief was claimed against defendant No. 2 who after the death of defendant No. 1, became the Mahant.
2. The plaintiff's case is that after he had been validly initiated as a Chela followed by a nomination for the future Mahantship, he acquired a vested status as the junior Mahant, and the Mahant defendant No. 1 had no .power to control that nomination far less to do so, without any justifying reasons. The case on the defendant's side was that after the death of defendant 1, a pure declaratory suit without any consequential relief against defendant No. 2 was not maintainable; and that since the Math had extensive property, the suit had been under-valued.
It was also contended that all the ceremonies necessary for initiating of a Chela had not been performed in case of the plaintiff and the plaintiff could not be validly initiated as a Chela by defendant No. 1 since the plaintiff had been previously initiated as a Chela by one Basudeb Ramanuj Das, who was defendant No. 1's earlier Chela and who was murdered sometime before the will in 1944 was executed by defendant No. 1. It was further pleaded that the plaintiff had ceased to be a Satsishya to defendant No. 1 by misconduct, and so the earlier nomination was rightly cancelled by defendant No. I. According to the defendant, the right of defendant No, 1 to cancel the earlier nomination was absolute and not circumscribed by any limitation; and that the usage of the institution authorised such cancellation.
3. On the question of valuation of the suit. jurisdiction of the court, and the maintainability of the declaratory suit without any consequential relief prayed for after the death of defendant No. 1, both the courts below have found in favour of the appellant The learned Munsif found that the plaintiff was not a Satsishya. The appellate Courl beld that whatever activities the plaintiff had manifested against his Guru defendant No. 1, were after the cancellation of the will in 1952 and not before that and that there was no evidence whatsoever that the plaintiffs had ceased to be Satsishya prior to the said cancellation.
So, according to it, the cancellation of the will could not be justified on the plea of the plaintiff ceasing to be a Satsishya, if it needed any justification at all. Both the Courts below held that the plaintiff had been properly initiated as a CheTa, irrespective of want of proof of certain ceremonies connected with such initiation, and for that they depended upon, Ramamohan Das v. Basudeb Dass, AIR 1950 Orissa 28 which lays down :
'Where initiation as a Chela by the defendant as found as a fact and the treatment as a Chela for a period of nearly 10 years has been satisfactorily established, in the absence of any dear evidence of usage, every presumption arises in law that all the requisite ceremonies whatever they might be, have been duly performed'.
The Courts also rejected the defence contention that being earlier nominated as a Chela by the Mahant's first Chela, the plaintiff could not be again initiated as a Chela by the Mahant himself. The Will (Ext. 1) which was the subject matter of the subsequent cancellation has not been sought to be proved through any of the attesting witnesses. The Courts below, for different reasons, did not countenance the contention that the will had not been properly proved.
The appellate Court relied upon Section 70 oE the Evidence Act to hold that execution of Ext. 1| had been admitted on the defendant's side, and so non-examination of any of the attesting witnesses was immaterial. Though in the plaint there was no prayer seeking any relief on the alleged invalid nomination of defendant No, 1, both the Courts below went into that question and decided it in the defendant's favour.
Both the Courts held that the appellant acquired no vested right or status by virtue of the initiation as a Chela and nomination as a successor, and it was always open to the Mahant to cancel the earlier nomination; and that the Mahant needed no justification for cancelling such nomination or nominating a new successor; and that such a right! flowed from the general legal position and from the custom and usage of the Math proved on the defendant's side.
It is this aspect of the case which has been strenuously sought to be challenged before me, and the only other point of challenge is whether the plaintiff has ceased to be a Satshishya prior to the cancellation of the will. No other findings of the Courts below have been sought to be agitated before US.
4. Before coming to the main point as to whether the appellant acquired a vested right as a result of initiation as a Chela followed by a nomination as successor, so that the Mahant had no further Power to cancel the nomination and even if he could cancel the nomination, he could no do so without justifying reasons and without giving the appellant proper notice (which admittedly he did not). I would dispose of the contention on the question as to whether the appellant had ceased to be Satshishya prior to the cancellation of the Will, on which the courts below have come to different findings.
The finding of the appellate Court on this question would ordinarily be final; but the learned counsel for the respondent has brought to my notice Ext, 1, which according to him, was not at all considered by the appellate Court. The said Ext. 1 'is a notice dated 12-7-52 published in the Daily 'Samaj1' at tihe instance of the plaintiff. In that publication, it Is mentioned that he gave notice of his having instituted a suit (the first suit in Ext. A(1)) since the Mahant was in mental disorder. According to the learned counsel, this notice must have been antecedent to the cancellation of the will
Obviously the notice referred to the institu-tion of the suit and that suit was instituted also on 12-7-52, and so the notice was written the same day as the institution of the suit and the cancellation of the will, and there is nothing to suggest that the notice was issued prior to the cancellation of the will. This notice was published in the Daily 'Samaj' of 19-7-52, and not of 12-7-52 as misconceived by the learned counsel. Clearly there is no force in the contention that issue of such, a notice ascribing mental disorder to his Guru would justify the cancellation of the will.
5. Now coming to the main question, it is the admitted case on both sides that the Samadhi Math at Puri is a Mourashi Math which belongs to the Baishnab Shri Sampradaya of Ramanuj Bishish-tadwaitabad Cult. According to AIR 1916 PC 256, Ram Parkash Das v. Anand Das.
'Right of succession to an office of Mahant depends upon the custom and usage of the particular Math or Asthal and is not governed by the general customary law'.
The Dakhin Parsha Math of Puri is admittedly a Mourashi Math of the Shri Sampradaya as the one under suit. A case of succession relating to this Dakhinparsa Math was the subject-matter of the Privy Council decision in 1894 reported in ILR 22 Cal 843, B. Ramanuj Das v. Ram Praparna Rama-nuj Das. Their Lordships held that the Mahant for the time being had power to appoint his successor from among his Chelas; that in the absence of appointment, a Chela, or if there should be more than one, the eldest Chela, would succeed. It has been laid down in ILR (1955). Cut 653 : (AIR 1956 Orissa 41), Tulsiram Das v. Ramprasanna Das :
'The right of nomination of a successor is an incident of the Office of a Mahant in a Mourasi Math, and a senior Chela acquires no right to the office only by reason of seniority in the line of succession. In the absence of a special custom to the contrary this rule is of universal application and would apply equally to celibate and Gruhi Maths'.
In the present case, it has been admitted on both sides that the successive Mahants had exercised their rights of nomination of their successors and it is not the appellant's case that he would ipso facto become the successor by virtue of his being initiated as a Chela if no nomination was exercised in his favour. Admittedly in the present case the plaintiff was initiated as the Chela and his nomination was subsequent thereto and it is not a case where the nomination as the successor was followed by certain ceremonies in confirmation of that nomination. For the appellant, reliance had been put on ILR 40 Mad 177 : (AIR 1917 Mad 578), Tiruvambala Desikar v. Chinna Pandaram in the Courts below and the same was also relied on before me. In that case their Lordships held :
'The nomination and ordination of a junior Pandarasannadhi is the customary mode of providing for the line of succession in Mutts. The position of a junior Pandarasannadhi during the life time of the senior is analogous to that of a co-adju-tor with the right of succession, under the common law, a right of which he cannot be deprived except for grave cause ..... A person who has been appointed as a junior Pandarasannadhi to whom abishegam has been duly preformed, acquires a status which is not lost, unless he is removed from his office for good cause. An ascetio who holds an office like that of a head of a mutt or a junior Pandasannadhi does not incur forfeiture of his office by reason of his immorality but is liable to be removed from his office on proof of his immoral conduct'.
The said Madras decision deals with a case where certain ceremonies had to be gone through by the Mahant in selecting the successor and also those which the person selected had to go through. The most important of these is the abishegam.
'The senior Pandarasannadhi himself offers puja to the junior, because by the abishegam the junior attains Godhead. The abishegam enables the junior to initiate disciples himself. He (the junior) performs separate Puja to Gods Vigneswara and Subrahmanya. He is called the Sadhaka Acharya, or co-adjutor with the senior'.
Their Lordships further observed,
'These being the attributes with which the junior is invested, I am unable to accede to the suggestion that he acquires no status and his postition is dependent on the good will of the senior. To my mind, by these ceremonies, the senior is instituting an heir to himself..... I am willing to concede that the right of removing the junior for proved misconduct inheres in the senior. Otherwise a person once appointed must be retained even if he has proved himself utterly unfit to hold the reli-gious office. But the grounds of removal must be such as would disentitle the senior himself to continue in office. Subject to this reservation, I am of opinion that the person appointed under a will and to whom abishegam has been performed, becomes the heir presumptive entitled to succeed to the headship on the happening of a vacancy'.
The case reported in 5 Cal LR 73, Sita-pershad v. Thakur Dass which held that a will of nomination of one Chela as a successor could be revoked by a fresh nomination in favour of another, had been placed before their Lordships of the Madras High Court and they observed.
'In that case, the right of appointment vested in the incumbent in possession. The mutt was a morasi Mutt, and incident of which was the right of selecting a successor vested in the Mahant for the time being. The report (5 Cal LR 73) does not show that after the process of selection any ceremony was gone through by which the nominee became sanctified and competent to initiate disciples. Moreover, it was found in that case that the successor was found guilty of immoral conduct which led to his supersession. Mr. Justice Princep lays down, too broadly in my opinion, that the appointee holds his position, until the appointment has been declared to be a bad appointment and invalid*. The learned Judge would give this right of declaration absolutely to the appointer. The facts of the case before the learned Judge might have justified that view. But I am not prepared to accept it as a general rule of law governing succession in similar institutions'.
The Madras case, above referred to obviously dealt with a case where a pure nomination by itself was not sufficient, but it was followed by certain ceremonies by virtue of wliich the junior Pandarasan-nadhi acquired certain independent right in matter of worship etc., the nomination being followed by an abishegam, in which the senior Mohant had to do obeisance to the junior, and the junior assumed the function of a co-adjutor or Sadhaka Acharya.
In the present case the appellant, who was first initiated as a Chela and then nominated, admittedly got no right to be future successor by virtue of his mere initiation as a Chela and the right to be the future successor only flowed from the fact of nomination, and the nomination was not consecrated by any ceremonies. Whatever right the plaintiff acquired as a Chela, if any, he acquired no vested right thereby for being nominated as a successor.
Even in ILR (1949) 1 Cut 406 : AIR 1950 Orissa 28 it has been held that such a Chela does not get any vested right of maintenance against a Mahant. In the absence of any usage to the contrary, the Mahant, who could nominate his successor, could cancel his nomination at any time before his death arid put another successor as held in 5 Cal LR 73; Sellappaswamy v. Manikkaswamy, 11 Ind Cas 336 (Mad) and Gobinda Ramanuj Das v. Ram Charan Das. AIR 1925 Cal 1107.
No doubt, there is evidence in the present case that after the nomination the appellant was treated with special respect at several functions both inside and outside the Muth as the junior Mahant; but that was usual in the nature of things, since after the nomination everybody expected that he would be the next Mahant in due course. Such treatment by itself gave him no vested right.
In the very will (Ext. 1) though he was nominated as the future Mahant, no immediate right was granted to him, and whatever the appellant was doing on behalf of the Muth after his nomination, he did by virtue of a special power-of-attor-ney executed in his favour by defendant No 1 Whether orally or in writing the nomination in Such cases must be in the nature of a will since the nomination is to take effect after death, and it is mentioned in the plaint that all the previous Ma-hants had been nominated by wills.
Once the question of nomination flowed from a will, oral or in writing, does not matter, the will could always be revoked under the general law. To prove that the usage of the muth was to the contrary or that a Mahant, after making a nomination, could not subsequently cancel it, as pleaded by the plaintiff, the plaintiff examined several witnesses and both the courts below have held that the plaintiff has not been able to prove any usage that the Mahant could not cancel the nomination once made. On the contrary, the Courts have relied on the evidence on the defendant's side that the usage was that a nomination once made could be canceled. This finding of usage in favour of the defendant has been sought to be challenged on the appellant's side, (After discussion of evidence His Lordship proceeded). So, on the basis of this type of evidence, it could not rightly be held that there was a usage in the Mourashi Math of Shri Sampradaya at Puri to cancel without justification a nomination once made.
In the absence of proof of any usage on either side, the general legal position would flow, and the person, who has a right to nominate one as his successor by will, can always cancel it and go in for another. The nominee does not get any vested right by virtue of the nomination and so, the question of making out a reasonable cause for his dismissal or giving him notice to explain his conduct does not arise, as arose in the case reported in ILR 40 Mad 177 : (AIR 1917 Mad 578), where because of the nomination being subsequently sanctified by certain ceremonies under which the nominee acquired a vested right, their Lordships were of the view that the nomination could not be cancelled except for good cause shown.
6. In the result, I find no merit in the present appeal, which is accordingly dismissed with costs.