1. The question in controversy in this appeal relates to theright of succession to the office of Mohunt of a Hindu religious institution,known as the Khumbakal mutt, situated in the interior of the District ofCuttack at a distance of about 40 miles from the headquarters. In 1906, and forsonic years before, Raghabananda Das was the Mohunt. He died on the 13thNovember 1906 and left, it is said, a Will executed and registered on the dayof his death. His chela Sriram Das succeeded to the office of Mohunt andcontinued as such only for a brief period, as he died on the 28th September1907. He left, it is alleged, a Will executed on the day of his death.Immediately after his death, Jaggannath Das laid claim to the office of Mohunton the allegation that he was his gurubhai or co-disciple. The claim wasresisted on behalf of an infant Achyutananda Das, who, it was said by hissupporters, had been taken as chela by Sriram Das and was consequently entitledto succeed him as Mohunt. This led to proceedings under the Land RegistrationAct before the Revenue Authorities; one of these was decided against JaggannathDas on the 25th March 1909, while another had terminated in his favour on the20th February 1909. The result was that on the 11th October 1909, JaggannathDas commenced this action for declaration that as the gurubhai of Sriram Das,he had lawfully succeeded to the office of Mohunt, and that Achyutananda Das,the pretended chela, had no claim thereto and was in fact an impostor set up bypersons anxious to seize the properties of the endowment. The Subordinate Judgehas found on the evidence, first, that the plaintiff Jaggannath Das was thesenior chela of Raghabananda Das, and secondly, that Achyutananda Das, thedefendant, was not the chela of Sriram Das. In this view, the Subordinate Judgehas decreed the suit. The defendant has appealed to this Court, and hascontended, first, that the plaintiff was not the chela of Raghabananda Das,and, secondly, that he himself had been taken as chela by Sriram Das. Beforethese questions are discussed, it is necessary to determine the rule ofsuccession applicable to this endowment.

2. It is the common case of the parties that the Khumbakulmutt is a maurusi mutt. As was explained in the case of Mohunt Rama Nooj Dassv. Mohunt Deb Raj Das (1839) 6 Mac. Sel. Rep. 329 : 7 Ind. Dec. (o.s.) 913mutts are of three descriptions, viz., maurusi, panchayeti and hakimi. In thefirst, the office of chief Mohunt is hereditary and devolves upon the chiefdisciple of the existing Mohunt, who, moreover, usually nominates him as hissuccessor; in the second, the office is elective, the presiding Mohunt beingselected by an assembly of Mohunts; in the third, the appointment of presidingMohunt is vested in the Ruling Power or in the party who has endowed thetemple. The Subordinate Judge has found that in a maurusi mutt, the chelasucceeds, and in default of a chela, the gurubhai succeeds; and, where thereare more chelas than one, the eldest generally succeeds, but a junior chela maysucceed, if he be found more capable and if he be selected by the last Mohuntas his successor. This is in accord with the decisions of the JudicialCommittee in Greedharee Doss v. Nundokissore Doss : 11 M.I.A.405 : 8 W.R. 25 (P.C.) : 2 Suth. P.C.J. 86 : 2 Sar. P.C.J. 306 : 20 Eng. Rep.154, Genda Puri v. Chatar Puri : 13 I.A. 100 : 9 A. 1 : 5Sar. P.C.J. 726, Ramalingam v. Vythilingam : 20 I.A. 150 : 16M. 490 : 6 Sar. P.C.J. 351 : 17 Ind. Jur. 578. Consequently, as the only lawapplicable to the Mohunts, their offices, functions and duties, is to be found inthe custom and practice applicable to the particular institution, the plaintiffmust prove that he is the chela of Raghabananda Das and that the defendant isnot the chela of Sriram Das. He must succeed on the strength of his own titleand not on the infirmity, if any, in the title of the defendant.

3. Before we deal with the oral evidence on the record, itis necessary to consider the two Wills alleged to have been executed byRaghabananda Das and Sriram. Das respectively. The Subordinate Judge was calledupon to examine the question of the genuineness of the two Wills, as Letters ofAdministration have not yet been taken on the basis of either document. It hasbeen explained that no application was made for Letters of Administration, inview of the decision of this Court in the cases of Jib Lal Gir v. Jaga MohanGir : 16 Ind. Cas. 453 [LQ/CalHC/1898/63] : 16 C.W.N. 798, Sarup Dassin v. HariCharan Dass : 16 Ind. Cas. 588 : 17 C.L.J. 65, ProsonnoKumari Debi v. Ram Chandra : 17 Ind. Cas. 155 [LQ/CalHC/1912/421] : 17 C.L.J. 66and Jagadindar Nath v. Madhusudan Das 27 Ind. Cas. 24 [LQ/CalHC/1912/512] : 20 C.L.J. 307 viz.,that as the Mohunt is not the owner of the property of the mutt, a personclaiming to be his successor cannot, on his death, apply for Letters ofAdministration in respect of the mutt property. This view has been controvertedwith reference to the decision in Ranjit v. Jagannath Prasad 12 C. 375, but itis unnecessary to determine this point, because notwithstanding section 187 ofthe Indian Succession Act, which is incorporated in the Hindu Wills Act, a Willnot proved in the Probate Court may be cited in evidence for a limited purpose.That section merely provides that no right as executor or legatee can beestablished in any Court of Justice, unless a Court of competent jurisdictionshall have granted a Probate of the Will under which the right is claimed orshall have granted Letters of Administration with the Will or with a copy of anauthenticated copy of the Will annexed; this does not debar the use of a Willin evidence for a purpose other than the establishment of a right as executoror legatee: Sukumari Gupta v. Bharat Mandal : 26 Ind. Cas.980 : 20 C.L.J. 148, Surbomungola v. Mohendronath : 4 C. 508,Janaki v. Dhanu Lall : 14 M. 454, Caralapatti v. Cota: 3 Ind. Cas. 475 [LQ/MadHC/1909/197] : 33 M. 91 and Basunta Kumar v. GopalChandra Das : 26 Ind. Cas. 21 [LQ/CalHC/1914/271] : 18 C.W.N. 1136. Consequently,in the case before us, a reference to the terms of the Wills, though neitherhas been proved in the Probate Court, is permissible, if the genuineness issatisfactorily established and if reference to the terms is not made with aview to establish the right of a person as executor or legatee. Now, as regardsthe Will of Raghabananda Das, the Subordinate Judge has pronounced in favour ofits genuineness. The Will was executed on the day of his death and wasregistered. On the evidence, there is no question that the document wasexecuted by Raghabananda Das; the only point for consideration is, whether hehad testamentary capacity at the time. He died of cholera in a lodging atCuttack; he was attacked with the disease on the night previous to the date onwhich he died. The Will was made on the morning of the day on which he died,and the plaintiff suggested in the Court below that he was then unconscious.The Subordinate Judge has refused to adopt this view, and we are disposed toaccept his conclusion, although the appearance of the signature of theexecutant tends to indicate that he must have been at the time very feeble; butthere is no reason to distrust the positive testimony that the public asked theWill to be read over and he gave his assent to the terms embodied therein. Asregards the Will of Sriram Das, which is said to have been executed by him atthe mutt on the 28th September 1907, the Subordinate Judge has pronouncedagainst its genuineness. The appellant has failed to convince us that this viewis erroneous. The evidence of its execution is by no moans satisfactory, and itis inconceivable that the plaintiff should have been allowed, without aprotest, to assume the office of Mohunt after the death of Sriram Das, if thelatter had left a Will in favour of the defendant. On the other hand, theevidence of the medical attendant, Kasi Prusti, shows that the illness of thedeceased was pronounced hopeless two days before his death, and that he wasunconscious on the day of his death. On the whole, we are not prepared todisagree with the Subordinate Judge in his view that the alleged testator was,on the day of his death, not in a condition to make a valid testamentarydisposition.

4. The first question for consideration is, whether theplaintiff was, as alleged by him, a chela of Raghabananda Das and,consequently, the gurubhai of Sriram Das. The oral evidence adduced by theplaintiff upon this point has been rightly characterised by the SubordinateJudge as overwhelming and of the most reliable character. The witnesses, whospeak to the initiation ceremony of the plaintiff, are men of position andmeans, and no intelligible reason has been assigned why they should conspire toset up a false case. Reference may be made particularly to the evidence ofDharamdas, the Mohunt of Arang, Radhamohan Santra, the shebait of an endowmentin the neighbourhood, Pran Krishna Das and Kishori Charan Das, two zamindars,and Gopal Das, the Mohunt of Bara Akhra, to which the Khambakul mutt issubordinate. There is, on this oral evidence, no room for doubt thatRaghabananda Das had two chelas, the senior, Jagannath, and the junior, Sriram.Against this view, the weightiest evidence brought forward by the defendant isthe recital in the Will of Raghabanand that he had no one else as his chelaexcept Sriram Das. There has been considerable discussion at the Bar upon thequestion of the admissibility of this statement in evidence. On behalf of thedefendant, it has been argued that the statement is admissible under clause 5of section 32 of the Indian Evidence Act. That section--we quote so much of itas is material for our present purpose--is in these terms: Statements, writtenor verbal, of relevant facts made by a person who is dead, are themselvesrelevant facts in the following cases: "(5) when the statement relates tothe existence of any relationship by adoption between persons as to whoserelationship by adoption the person making the statement had special means ofknowledge and when the statement was made, before the question in dispute wasraised." On behalf of the plaintiff, it has been argued that the sectionshould be strictly construed and that the statement in question should beexcluded, first, because it relates not to the existence but to thenon-existence of a relationship, and, secondly, because the relationshipbetween a Mohunt and his chela is not a relationship by adoption. On behalf ofthe defendant, it has been argued that the section should be liberallyconstrued, and that it is only by liberal construction that the view taken inthe case of Ram Chandra Dutt v. Jogeswar Narain Deo : 20 C.758, affirmed by the Judicial Committee in Jogeswar Narain Deo v. Ram ChandraDutt : 23 C. 670 : 23 I.A. 37 and Dhanmull v. Ram Chaunder: 24 C. 265 : 1 C.W.N. 270, can be defended. In answer, ithas been contended by the plaintiff that the view taken in these cases viz.,that a statement as to date of birth or marriage of a person is admissible as astatement relating to the existence of relationship, though in accord withillustrations (l) and (m) of section 32 is opposed to the view taken in BepinBihari v. Sreedam : 13 C. 42, Satis Chunder v. Mohendra Lal: 17 C. 849 and Ram Krishna v. Monindra Mohan 20 C.L.J. 304.It is not necessary for our present purpose to determine whether thefluctuation of judicial opinion indicated in the two sets of decisionsmentioned is more apparent than real, and whether they may not be reconciled bya recognition of the principle that a statement as to the time of commencementof a relationship is so indissolubly associated with the existence itself ofthe relationship, that it may be rightly regarded, without undue stretch oflanguage, as a statement which relates to the existence of that relationship:Oriental Government Security Life Assurance Company Ld. v. Narasimha Chari: 25 M. 183 : 11 M.L.J. 379, Patinharkuru v. Raman: 24 Ind. Cas. 519 [LQ/MadHC/1914/174] . But whatever view may be adopted uponthat question, it does not directly affect the points raised before us forconsideration, viz., first, is the relationship between a Mohunt and his chelaa relationship by adoption, and, secondly, is a statement that A has one chelaB and has no other chela a statement relating to the existence of arelationship We are of opinion that both these questions should be answered inthe affirmative. In the first place, there is no reason why the term"adoption" should be interpreted in a restricted sense; the expressionthat A has adopted B as his chela is found in judicial decisions of the highestauthority.

5. In the second place, the expression "relates to theexistence" is obviously very comprehensive and need not be construed inthe narrow sense suggested by the plaintiff. This view is in accord with thedecision of the Judicial Committee in Mohunt Bhagaban v. Mohunt Ram Praparna 22I.A. 94 : 22 C. 843. In that case, the contest for the office of Mohunt laybetween one Raghu Nandan, who claimed to be the gurubhai of the deceased MohuutHoygrib (both of them chelas of Chatturbhuj), and Bhagaban, who claimed to bethe chela of Hoygrib. The plaintiff contended that the defendant was not thechela of Hoygrib, while the defendant asserted that the plaintiff was not thechela of Chatturbhuj, and, consequently, not the gurubhai of Hoygrib. Apetition by Chatturbhuj, adduced in evidence, contained the statement that hehad no other chela or heir besides Hoygrib; and this was sought to be used todisprove the allegation of Raghu Nandan that he also was a chela ofChatturbhuj. The statement was treated as admissible in evidence, but was heldto be not conclusive. We hold accordingly that the statement of Raghabanand inhis Will, dated the 13th November 1906, that Sriramdas was his chela and thathe had no other chela has been rightly admitted in evidence. The only questionis whether, as Sir Richard Couch said in Mohunt Bhagaban v. Ram Praparna 22I.A. 94 : 22 C. 843, having regard to the other evidence in the case, thestatements in the Will should be accepted as true. In our opinion, the questionmust be answered in the negative. It is clear on the oral evidence that theplaintiff Jaggannath, though the senior chela from the point of view of thedate of his initiation, was younger in age than Sriram. As is explained byMohunt Gopal Das, Sriram was not only older than Jagannath but was moreintelligent. It is further plain that Jagannath had, on one occasion, attemptedto commit suicide, and was sentenced to simple imprisonment for one month. Thismay have displeased his guru Raghabananda, who obviously intended to have himsuperseded by Sriram; and with a view to strengthen the position of the latter,whom he expressly nominated as his successor, he may have stated in his. Willthat he has no other chela. This could not possibly prejudice the right ofJagannath to succeed as Mohunt, should Sriram die without a chela. We holdaccordingly that, notwithstanding the statement of Raghabananda in his Will,the oral evidence establishes satisfactorily that Jaggannath was the seniorchela of Raghabanand.

6. The second question for consideration is, whether thedefendant Achyutananda was adopted as a chela by Sriram. The story for thedefendant is that he was taken as chela by Sriram on the day of his death. TheSubordinate Judge has disbelieved the oral evidence on this point, and we arenot prepared to hold that he has taken an erroneous view. In the first place,it is plain from the evidence on the side of the plaintiff that Sriram was, onthe day of his death, in a more or less unconscious condition, and was notphysically able to perform the elaborate ceremonies essential for theinitiation of a chela. In the second place, the alleged Will of Sriram putsforward an entirely different story viz., that the defendant was taken aschela, six years earlier, when a boy only three years old, during the life-timeof Raghabananda himself; whoever may have manufactured the Will, whether on theday of or immediately after the death of Sriram, did not venture to put forwardthe story of the initiation of the defendant on the day of the death of Sriram.In the third place, it is indisputable on the evidence that at the mahotsabceremony held on the thirteenth day after the death of Sriram, the plaintiffwas installed as the Mohunt in the presence of a large assembly of Mohunts andrespectable men. No claim appears to have been put forward on behalf of thedefendant as the chela of Sriram. If the defendant had been so recently adoptedas chela, it is inconceivable that his supporters should have allowed theinstallation of the plaintiff to go unchallenged. The case for the defendant iscertainly not improved by the suggestion that the plaintiff was allowed toassume the office of Mohunt, because he had been appointed by the Will ofSriram as the guardian of the defendant. On the other hand, it is plain thatthis was an ingenuous device, adopted by the framers of the Will, to propitiatethe plaintiff, if possible, and to secure his acquiescence in the claim subsequentlyput forward on behalf of the defendant. We feel no hesitation in holding thatthe defendant is not the chela of Sriram Das.

7. We confirm accordingly the two-fold finding of theSubordinate Judge, viz., that the plaintiff is the chela of Raghabanand andconsequently the gurubhai of Sriram, and that the defendant is not the chela ofSriram. In this view, the decree of the Subordinate Judge must be affirmed andthis appeal dismissed with costs.

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Achyutananda Das vs.Jagannath Das (10.08.1914 - CALHC)