Holding

Under the custom of the Sant Mat Sampradaya a Sudra may be validly initiated as a sanyasi, the requisite ceremonies were performed, the house is an accretion to the Math’s property, succession follows guru‑chela nomination, and the suit does not abate on the plaintiff’s death.

Summary

The case concerned a dispute over a house in Varanasi claimed to be property of the Garwaghat Math, a religious institution of the Sant Mat Sampradaya. The appellant argued that the plaintiff, a Sudra, could not be ordained as a sanyasi or mahant and that the house was his personal inheritance, not Math property. The Court examined the existence of the Math, the customs governing succession, and whether a Sudra could be initiated as a sanyasi under the sect’s usage. It held that the Math existed, the house was acquired from offerings and thus belonged to the Math, and that the Sant Mat custom allowed Sudras to become sanyasis without the orthodox rites of Atma Sradh and Pravesh Mantra. The Court also ruled that succession to the mahantship is by guru‑chela nomination and that the suit does not abate on the death of the original plaintiff, allowing the legal representative to continue the appeal. Consequently, the appeal was dismissed.

Issues considered

Whether a Sudra can be ordained into the Sant Mat order and become a sanyasi/mahant under Hindu law.
Whether performance of Atma Sradh and recitation of the Pravesh Mantra are essential for recognition as a Hindu sanyasi in this sect.
Whether the house in dispute is part of the Math’s endowment or the personal property of the predecessor.
Whether succession to the office of mahant is governed by custom/nomination within the Sant Mat Sampradaya.
Whether the suit abates upon the death of the original plaintiff (actio personalis moritur cum persona).
Whether the legal representative of the deceased mahant can be substituted and continue the appeal.

Legislation cited

Code of Civil Procedure, 1908s. Order 10 r.1, s. Order 22, s. s.2(11)

Subjects

Math (religious institution)Sant Mat SampradayaSanyasi ordinationSudra casteHindu personal lawSuccession of mahantshipCustom and usageCivil deathActio personalis moritur cum personaCPC Order 22Property of religious endowment

Judgment

660

A SRI KRISHNA SINGH
v.
MATHURA AHIR AND ORS.
•
December 21, 1979
B [S. MURTAZA fAZAt ALI AND A. P. SEN, JJ.J

1-lindu Law-Whether a S11dra fan l·nter the order of Yuti or Sanyasi-'Sant
}.fat/1' San1pradaya, denonu'nation of Da~na1ni Sect-JVhethcr a Sudra cannot
enter the order of sanyasi i11 the Sant Math and whether a Brahman alone can
be a sa.•1yasi among Das11an1is-Essential ceren1onies for 1he initiation of Das-
na1nis-Performance of Atn1a Sradh and reciting Pravesh Mantra Sant fl.fath ,,,.
c San1pradaya-Mode of succe.\.\ion a1no11g thl' Sant Math-Right ta after-acquired
property of a Mahant out of Math funds, whether accrues to natural son.

Abate111e11t of appf'al-Maxini of "actio personalis rnorltur cunt persona",
applicability of i11 the case of suUs by Malwnt for the recoverv t./ Math property
-~Order XX/I Civil Procedure Code.

D Respondent M·athura Ahir alias S\vami Hars\vanand, the ~fahant of Garwa~
ghat I\Jath fil'ed a suit for decla11ation of title to and possession ot house No.
C/27 /33 situa.te in I\1ohalla Jagatgunj, Varanasi, for arrears of rent and nzesne
profits in respect thereof. The said prop'e11y was purchased by his Guru Atma
Vivekanand Paramahnns (ne Baikunth Singh) from out of the income of the
!\.lath i.e. the offerings (Bhent) made by the devotees. The appe11ant v.'ho was
impleaded oo defendant 5 to avoid further litigation cJ::1imed that this property
I~ acquired by his ]ate father Baikunth Singh alias Swami Atin1 Vivekanand) after
he became a Guru and out of 1\.·Iath funds devolved upon him th'e natura.I son •
and di~ciple. Since the claim went in fayour of the fi!Spondent 1\.1ahant the
appellant came in appeal by special leave to this Court. The original plaintiff
di'ed during the pendency of the a.ppeal.

The contentions of the appellant were : (i) the plaintiff ~Jathura Ahir being
F a Sudra could not be ordained to a religious order and become a Sanyasf or yati
and 1herefore inst·alled a mahfVOt of the Garwaghat Math, ~c·;ordin~ to the
tenets of the Sant Math Sampradaya, (ii) tn the abseince of proof of the per-
formance of Atn1a Sradli and the recitation of Prave~li Mantran1, neither the
plaintiff nor his two predecessors Swami Sarupanand an<l Swami At1na Vivcka-
nand rculd be regarded as Hindu Sanyasi; and (iii) the first respondent
Harsawanand the original plaintiff having died during the pen<le11<.:y of the
c; <!ppenl, 1he appeal abated in its entirety. •
~Dismissing the appea1, the COurt

~V IJELD: 1. A math is an institutional sanctum presided aver by a superior
J\
\Yho combines in himself th: ~ual office ~f being th'e. religious or spiritual head
of the particular cult or rel1g1ous fraternity and of the manager of the secular
H :rroperties of the institution of the Math. [671 D-E]
The property belonging to a Math is in fa-ct a.ttached to the. office of the
mahant, and passed by inheritance to no one who does not fill the office. The
SRI KRISHNA v. MATHURA AHTR (Sen, J.) 661

J]ead of a ~fath, as such, is not ::ii trustee in the .sense in ..vb.ich that term is A
I generaJ;y undcrst.:od, but in legal contemplation he has an estate f.or life in its
permancnl endowments and an absolute property in the incom;! derived front
I '
the ·J!ferings of h:s followers, subject only to the burden of n1aintaining the

~- ;
institution. [671 A-BJ

l Jn the in"itJnt case, th'~ evidence on record sufficiently es!ablisftes tha.t a Math
I crnnc to be established at Garw.:ighat and the building known ~5 "Bangla !{uti" B
and certain other building-.; including the house in suit ...-:onstituied the endow-
ment of the math itself. [671£-F]
S{lnunanthll Pandara v. Sellappa Chetti (1879) JLR 2 Mad. 175; Gyanasam··
b!1andru1 Pand'ara Sannadhi v. Kandasw(lflli Tan1biran1 (1837) lLR 10 Mad. 375;
J'idya Furna Thirthaswa111i v. Vidyanidhi Thirtl1a Swami (1904) ILR 27 Mad.
--..... 435; Rani Prr1ka~ih Das v. Anaud Das (1915-16) 43 I.A. 73 (PC); Vidya Vantht
1'ftirtha v. Baluswa1ni Tyer (1920-21) 48 I.A. 302; r'eferred bJ. c
:!. The math at GarW'aghat belongs to the 'Sant Mat' Sampradaya, which
is a religious order and the suit property is Math property. Though the 1\-lath
at Garwaghat established by Swami S<irupan&nd was of t'ecent origin, the religious
order denomin&ted as 'Sant Math' has had large following in Puniab and some
oth-er parts of India since more than a century. In a sense, therefore, Swami
San1panand himself did not for the first tin1e evolve any new religious order. D
[672 E, 673 F-G]

T'he institution was really built up by Swan1i Atma Vivek:i.nand, who was
held in great vener'1tion by the followers of the sect. Ile pr'e:i.cheJ the tenetJ
of 'Sant ~lat' and had a large following. His 'Sant Mat' fraternity con1prised
of thousandS" of Girhastha .and Virakta disciples who made Jarg3 offerings. Such
offerings in cMh or kind or in the shape of immovab1e nropl.'.rty whiLh were E
endowed to the Math. Swami Atma Vivekanand was the ~fahant of the
Garwaghat ~lath. The two houses at v,aranasi including the suit house were
purchased by Swami Atma Vivekanand from out of the offering (Bhent) made
by his disciples. [675A-DJ

3. Succession to Mahantship of a Math or religious in'9titution is regulated
by custon1 or usage of the particuk1r institution, except where a rule of r.ucces- F
sion is laid down by the founder himseH \Vho created the endowment. [675 G-11]

Genda Puri v. Chhr.tar Puri, [18861 13 I.A. 100 @ 105; Sital Dus v. Sant
R(un, A.LR. 1954 SC 606; Mahnlinga Tha1nbira11 v. La Sri Kash•a.f:i, [1974] 2
SCR 74; followed.
4. The succession to the office of the Ma·hant according to Sant 5ampradaya.
is by nomination, i.e. from Guru to Chela, the Guru initiates the chela after G
performing the nec'essary ceremonies. The person initiated as a Chela adopts
the life of a sanyasi a.nd is pledged to lead a life of celibacy and religious
rnendironcy. The sitting Mahant hands over the management of the Math to
one of his virtuous Chelas fittest to succeed when he nomin:ites and when he
wishes to install as Mahant after him in his place. He 1na.kes clear this desire
to the members of his Sampradaya, and also authorises the nominated chek1 t.:>
give Bhesh Dikshwa. After the death of th'e Mahan!, the Bhe<h and Sampradaya H
give Chadar Maha11ti of the math to the said disciple at the time of the
Bhandarn. [672 A-CJ
662 SUPREME COURT REPORTS (1980] 2 S.C.R.

A 5. Asceticism in India has been under the definite and strong sanction vf
religion. In 'the doctrine of th'I! four asranias, asceticism was 1nade an integral
part of the orthodox Hindu life, and it became the duty of every Hindu, as
advanced age overtook him, homeless and a wanderer to chast~n himself from
' I

earthly ties, and of realizing union with Brahman. A.nd a religious motive was
thus supplied for that which in itself was a welcon1e release from responsibility,
care and the minute requirements of an elaborate_ social code. Jn due course,
B with the advanc·ement of knu\vledge, the shackles of the caste -,ystetI' were
broken through and the privileges and powers of the ascetic !if:! \vere extended
to Sudras and in due recognition of their status, they were treated as Hindu
Sanyasis. At the present tin1~. there is no distinction or barrier; any one may
become an ascetic, and the v;_1ws a.re not nec'cssarily life long. Some sects, how-
ever, still restrict 1nen1bership to Brahmans, or at least to men of the three
higher castes. [681 E-H, 682 G-H]
c "
6. One who enters into a religious order severs his conncr.:tion with the
men1bers of his natural family. He is accordingly excluded from inheritance.
Entrance to a religious order is tantamount to civil death so a:".i to cause a com-
plete severen-..::e of his connection with his relations, as well as with his property.
Neither he nor his natural relatives can succeed to each other's properties.
D [676 A-BJ

A_ny property \Vhich may be subsequently acquired by person3 adopting re·
ligious orders passes to their religious relations. The persons \.Vhu are excluded
on this ground came under three heads; the Vanaprastha or hermit; the Sanyasi
or Yati, or ascetic and the Brahmachari or p'erpetual religious student. In order
to bring a. person under these heads, it is necessary to show an absolute aban-
E donment by him of all secular property, and a complete and fiGriI withdrawal
from earthly affairs. The mere fact that a person calls him.scif a Byragi or
. religious mendkant, or indeed that he is such, does not of itself disentitle him
to succeed to property. Nor does any Sudra come under this disqualification,
unless by usage. This civil death does not prevent the person \vho enters into
an order from acquiring and holding private property v;1hich will devolve, not _/
of course upon his natur2.1 relations, but according to secial rules of inheritance.
F But it would be otherwise if there is nu civil death in the eye of the law, but
only the holding by a man of certain religious opinions or professions. The
after-acquired property passes on his de:ith not to his natural but to his spiritual
heirs. [676 A-E, 683 A-Bl

Dharmapuram v. Vivapandiyan, [18991 I.L.R; 22 Mad. 202, Harish Chandra
v. Alia Mahamed, [1913] I.LR. 40 Cal. 545, explained.
G
7. The 'Sant Mat' sampr&daya is a religious denomination i.e. a sub sect of
one of the Dasnami sects founded by the Great Sankracha:ry&. Sankara was an
asc.eti~ and founded schools of ascetics. Sankara established four Maths or
s'eats of religion at four ends of India-the Sringeri Math on the Sringeri Hills
in the South, the Sharda Math at Dwarka in the West, the Jyotir Math at
Badrikashram in the North, and the Govardhan Math at Puri in the east. The
ff monks ordained by Sankara and his disciples were called Sanyasis. Each Math
has a sanyat1i at its head who bears the title of Sankaracharya in general.
Sankara is said to have four disciples who were all brahmans, from whom the
SRI KRISHNA v. MATHURA AHIR (Sen, J.) 663

ten divisions of the order-hence named as the ten-named or 'dasnami Dandis' A
originated. They at'e : Thirtha, shrine; Ashrama, order; Vana, wood; Aranya,
Forest or desert; Saraswati and Bharati, the goddesses of Ica.n1ing and speech;
Puri, City; Giri and Parvata, a hill; and Sagara, the ocean. [683 C-G]

Dandis or staff bearers occupy a place of pre-eminence. They worship Lord
Siva in his form Bhairava; the 'Terrible' and profess to adhere Nirguna and
Niranjana, the deity devotd of attribute or passion. A sub section of this order B
arc the Dandi, Dasna1nis or Dandi of ten names, so c2.Ued from their assuming
one of the na·mes of Sankara's four disciples and six of their pupils. [658 B-CJ

The Dandis keep themselves very distinct from the rest of the community.
-..... They are Brahmans, and receive disciples only from the Brahmans. They lead
a very austere life. They do not touch fire or metal or vesseis made of any
sort of metal. It is equally impossible also for them to handle money. They
shave their hair and beard. They wear one long: unsewn reddish cloth, thrown
about the person. [686 A-BJ

There are but thre'e and part of a further ~»scetic class, or those called Tirtha,
Asrama, Saras\vati and Bharati \vho are still really regarded as Sankara's disci-
ples. The rest i.e. the ren12.ining six and a half of the Dasna1nis who are consi-
dered as having fallen from the purity of practic'e necessary to the Dandis, are D
still, in general religious char·acters usually denominated and are Atits. These
are the Atits or A'Dandis viz. the Vanas, Aranytas, Puris, Giris, Parvata,
Sagaras and half the Bharatia, reputed to have fall'en to some extent from
•i orthodoxy, but are still looked upon as religious avatars. Unlike the Dandis,
the Atits do not carry the shaft i.e. a Trishul. They differ from the former
also in their use of clothing money and ornaments, th'eir methods of preparing
food and their admission of members from any order of Hindus. Some of them E
lead an ascetic life, while others mix freely in the world, carry on trade and
acquire prop'erty. ~fost of them are celibate but some of them marry and are
often known as Samyogi or Gharbari Atits. They are collected in Maths and
monastries. They wear ochre coloured garments, and carry a rosary of rudraksha
seeds sacred to Lord Siva. Their religious theories (wheD. they have any) are
based on the a<lvaita Vedanta of their founder Sankaracharya. [686 H, 687 A-DJ
F
There is· also ai sub division of the Puri division of the Dasanami Sect. Th'ev
• have tenets much in common, based on the central idea that the Supreme dietY
is incomprehensible or 'unseeable'. They denounce idolatory. This more or
less conforms to the tenets of the 'Sant Mat' Sect. [678 D~EJ

• The followers of the 'Sant Mat' treat the Guru as the incarnation of God .
They have no faith in ina.nimate idols installed in temples nor do they worship
them in their cult. There are no caste restrictions and any one can be admitted
G
into the Sant Mat fratern'ity. A-::cording to the custom and usage of the Sant
Mat Sampradaya, the initiation of a chela by th'e Guru result~ in complete
renunciation of the world and he ceases to ha.ve all connection with bis previous
Ashramas before becoming a Sanyasi. For becoming a sanyasi it is not
necessary that he should be of a particular Varnashram previously, i.e. 'even a
Sudm coo become a Sanyasi. [671 G-H, 672 El
H
,, 8. Though according to the orthodox Smriti writers a Sudrn cannot legiti-
' mately enter into a religious order and although the strict vie¥.' does not
5-9lSCil80
664 SUPREME COURT REPORTS [1980] 2 S C.R.

A sanction or tolerate ascetic life of the Sudras, the existing practice all over India
is quite contrary to such orthodox view. Jn cases, therefore, where a Sudra can
enter into a religious order in the same way as in the case of the twice-born
classes, such usage should be given effect to. [670E-F]
9. In order to prove that a person has aJopted the life of a Sanyasj, it must
be shown that he has actually relinQuished and abanJ.oned ail ',\'crldly posses-
B sions and relinquished all des.ire for them or that such ceremonit:-; <!•re perfurm-
ed ¥rhich indicate the severence of his· natural family and bis secular life. It
riiust also be proved in case of orthodox sanyasis, that necessary ceremonies have
been performed such as Pindadana or Birajahoma or Prajapatliiycsthi ·without
which the renunciation will not be complete. {687G-H]
Amongst Dasnamis, a ceremony called the BijJa Homa i.e. the Biraja Hon1a
has been considered essential. The recitation of the Pravesha Afantrani or thC-
c renunciation formula is of course indispensable. [688 A]
In the instant case: (a) there is ove1whelming evidence in proof of the fact
that the requisite ceremonies of Biraj homa or Praiapathiycsthi \Vere performed
in case of Swami Sarupanand and Swami Atma Vivekana.nd. lf the Prafapa-
thiycsthi or Biraj Homa ceremonies \Vere performed then it must necessarily
giv'e rise to the irresistable inference that Swami Atma Vivekanand must have
D performed his Atma Srmih before he was initiated as a chela; (b) The appellant
was precluded from contending that his father Baikunth Singh was not a Hindu
Sanyasi in view of his express admission in the plaint filed in an earlier suit.
1'he burden of proof shifted upon him to disprove it; (c) S\\-·ami Harsewanand
(h.1athura Ahir) was the va.lidly initiated chela of Swami Atn1a Vivekanand
and upon his demise was duly installed as the 1vlahant of 'Garwaghat Math'
according to the tenets of 'Sant Mat' Sarnpradaya. [609 G, H. 693 C-Dl
E
10. The question wheth'er a suit abates in its entirety or not upon the death
of the plaintiff must necessarily depend upon the nature of the !'>nit. This is
not a class of case to which the maxim, actio personalis 1noritur cun1 persona
applies. [694 C-D]
11. According to Hindu jurisprudence, a religious institution such as a math
is created as a juri5dic entity with a legal personaJity capable of holding and
acquiring property. It therefore follows that the suit instituted by the mahant
for th'e time being, on its behalf, is properly constituted and cannot :ibate under
the provisions of Order 22 of the Code of Civil Procedure on the death of the
mahant pending the decision of the suit or appeal, as the rend. party to the
institution is the institution. The ownership is in the institution or the idol.
From its very nature a math or an idol can act and assert its right~ only through
human agency knov:n as a mahant or shebait or dha.rma'karta or sometimes
G knowri as trustee. It follows that merely because the mahant for the time
being dies and is succeeded by another mahant. the suit does not abate. [695
D-C, El
Ram Swarup Das v. Rameshwar Das, ILR 29 Pat. 989, over-ruled.
12. The general rule is that a11 rights of action and all dem.:ind~ whatsvever
existing in favour of or against a person at the time of his death survive to or
H against his legal representative within the meaning of s. 2(11) or C.P.C. [699 A,
F]
Muliamcd Hussain v. Khushalo, JLR 9 All. I 31; approved.
SRI KRISHNA V. MATHURA AHIR (Sen, J.) 665

• CIVIL APPELLATE JURISDICTION: Civil Appeal No. 180~ of 1971. A
Appeal by Special Leave from the Judgment and Order dated
2-11-1971 of the Allahabad High Court in S.A. No. 768 of 1964.
Y. S. Chitale, Lalji Sahai Srivastava, B. P. Singh and Mukul
• Mudgal for the Appellant.
B
R. K. Garg, S. P. Singh and Sudama Ojha for Respondent No. 1.
S. T. Desai and Uma Datta for Respondent No. 3.
S. C. Patil for Respondent No. 2
M. Veerappa for Respondent No. 4.
c
The Judgment of the Court was delivered by

SEN J.-This is an appeal by special leave from a judgment and
decree of the Allahabad High Court dated November 2, 1971 in a
suit for declaration of title to, and possession of house No. C-27 /33
situate in Mahalia Jagatganj, Varanasi for arrear~ of rent and mesne D
profits in respect thereof.

The principal point in controversy between the parties in this
appeal is, whether the plaintiff, Mathura Ahir, being a Sudra could
., not be ordained to a religious Order and become a Sanyasi or Yati
and, therefore, installed as a Mahant of the Garwaghat Math accord- E
ing to the tenets of the 'Sant Mat' Sampradaya. ~ subsidiary ques-
tion arises as to whether in the absence of proof of.the performance of
Atma Sradh and the recitation of Pravesh Mantra neither the plain-
• tiff nor his two predecessors Swami Sarupanand and Swantl Atma-
A '- vivekariand conld be regarded as Hindu sanyasis. It also raises a
further question namely whether the first respondent, Harsewanand, F
the original plaintiff having died during the pendency oE the appeal,
the appeal abates in its entirety.
The facts of the case are set forth with utmost particularity in
the judgment of the High Court. It wi!l, therefore, not be incon-
venient to deal with them as briefly as possible. The history of the
G
Garwhaghat Math is as follows: In 1925, Swami Sarupanand Param-
hans, disciple of Swami Advaitanand, a Hindu ascetic belonging to
the 'Sant Mat' sect, came from the North-Western Provinces, and
took his abode at Garwaghat, Mouza Ramna Malhija, in the vicinity
of Varanasi City. He was a religious preceptor of great learning and
from his hermitage preached the tenets and precepts of the 'Sant Mat' H
and soon had a large following. He was treated with great vene-
ration and some of his devotees by a registered gift deed dated March
666 SUPREME COURT REPORTS (19Sf\] 2 S.C.R.

A 18, 1935 endowed the land and building, which he named as 'Bangla
Kuti'. Subsequently the said Bangla Kuti and other lands and build-
ings appurtenant and adjacent thereto came to be known as the
Garwaghat Math of which Swami Sarupanand was initially the
mahant. He paid a visit to village Khuruhja for a couple of days
and Baikunth Singh, father of defendant No. 5, Sri Krishna Slngh, the
B appellant, was greatly influenced by his preachings and left for
Varanasi for good. In due course, Baiknnth Singh was initiated as chela
by Swami Sarupanand who named him as Atmavivekanand. Sw~mi : Ir
Atmavivekanand Paramhans was the chief disciple of Swami Sarupa- . ,
c
nand and was given full rights of initiation and Bhesh by his Guru._,
Swami Sarupanand took his samadhi at Meerut in 1936 and after his
death, according to his wishes, his Bhesh and Sampradya gave Swami
1
Atmavivekanand Chadar Mahanti of Garwaghat Math and made him
the mahant. Swami Atmavivekanand also had a large following and
his 'Sant Mat' fraternity which comprised of thousands of Grlhastha
and Virakta disciples made large offerings and gifted extensive pro-
0 perties to him as their religious or spiritual lea<!er.
In 1937, Swami Atmavivekanand initiated the plaintiff Mafhura
Ahir as his chela and named him as Harscwanand according to the
cnstom and usage of the 'Sant Mat' sect. During his lifetime, he
purchased the two properties viz., house No. C-27 /33. situate in I
Mohalla Jagatganj and house No. C-4/83, situate in Mahalia Sarai
E
Gobardhan in the city of Varanasi by registered sale deeds dated
December 3, and December 22, 1942 from _out of the income of the
math i.e., the offerings (Bhent) made by the devotees and formed
the properties of the math. Swami Atmavivekanand died at Varanasi
on August, 23, 1949. A Bhandara was held on October 3, 1949 and
according to the wishes of Swami Atmavivekanand, the mahantas and
sanyasis of the Bhesh and Sampardaya gave the Chada1' Mahanti to
the plaintiff and installed him as the mahant of the math in place of
Swami Atmavivekanand on October 4, 1949 in accordance with the
custom and usage of the Sampradaya. The mahants and sanyasis of
the 'Sant Mat' Bhesh who had assembled for the Bhandara also
G executed a document to that effect acknowledging him to be the
mahant. The plaintiff having been installed as the mahant, the entire
property of the Garwaghat Math along with the two houses in the city
of Varanasi, devolved upon him as successor to Swami Atmaviveka-
nand.

II On August 21, 1951 the plaintiff-respondent No. 1, Harsewanand,
brought the suit, out of which this appeal arises, in the ·court of the
City Munsif, Varanasi for ejectment of respondents Nos. 2 to 5 from
SRI KRISHNA v. MATHURA AHIR (Sen, !.) 667

house No. C-27 /33, situate in Moballa Jagatganj, Varanasi. It was A
pieaded that respondent No. 2, Avadesb Narain, defendant No. 1,
had taken the house on rent from Swami Atmavivekanand, the late
mahant. It was alleged that he bad unlawfully: sub-let the premises
to the respondents Nos. 3 to 5, who were defendants Nos. 2 to 4.
The suit was contested by these respondents who denied the tenancy
and inter alia pleaded that they were in occupation of the house as B
che/as of Swami Atmavivekanand in their own right by virtue of the
licence granted to them by him. They denied the plaintiff's title as
well a8 right to sue alleging that he was neither a chela of Swami
-Atmavivekanand nor his successor. It was also alleged that the house
in suit was the personal property of Swami Atmavivekanand and,
therefore, on his death his natural son and disciple, Sri Krishna Singh,
c
the appellant became the owner thereof. The suit which was originally
framed by the plaintiff-respondent No. 1, Harsewanand, as a s_uit
between a landlord and tenant bad, therefore, to be converted into a
suit for possession based on title by impleading the appellant, Sri Krishna
Singh as defendant No. 5. D

It is not necessary to mention in detail the other averments in
the plaint, nor is it necessary to mention the various\ pleas raised in
the written statement filed by the defendants. It will be sufficient,
however, to mention that the appellant Sri Krishna. Singh in bis. written
statement denied the existence of the math as pleaded by the plainliff E
and asserted that the house in it, in any case, was not math property.
He further pleaded that the plaintiff Matbura Abir being a Sudra, was
legally incompetent to become a sanyasi, and that the plaintiff wa~
not the mahaut of the Garwaghat Math. He turther claimed that
after the death of Swami Atmavivekanand, be became the owner of
the house in suit by inheritance, as also of the properties alleged by F
the plaintiff to belong to Garwaghat Math. All these PJ'Operties,
according to the appellant, were secular and personal properties of his
father Baikunth Singh, who was also known as Swami Atmaviveka-
nand.
G
In the trial, the issues, as finally framed by the learned Munsif
were seventeen in number. Of these, the following are relevant : (1)
Whether the plaintiff is the owner of the premises in suit ? (8) Whe-
ther the plaintiff was nominated as a mahant and given Chadar in
accordance with the custom ? Is there any custom as alleged by the
plaintiff? (12) Was Swami Atmavivekanand a sanyasi and had h¢ n
ceased to be a Grihasti? (13) Is the plaintiff a Sudra and not
entitled to become sanyasi according to Hindu law? (14) Is the
. '
668 SUPREME COURT REPORTS [1980j 2 S.C.R.

A plaintiff chela of Swami Atmavivekanand and entitled to succeed to ~
properties left by him in preference to his, son Sd Krishna ? ( 15) Is
the house in suit a Malh property ?
It appears that the case came up for hearing before the learned
Munsif on October 5, 1953 when the plaintiff's counsel accompanied
8 by his parocar made oral pleadings under 0. 10, r. 1 of the Code
of Civil Procedure to the effect :
"The 'Sant Mat' Sampradaya is one of the Dasnami
sanyasis founded by the great Sankaracharya. and is gov-

c
erned by Naranjini Math Akhara."
The learned Munsif found each and every of these issues in favour
l
of the plaintiff and accordingly decreed the suit.
x x x x x x x x x
On appeal the III Addi. Civil Judge, Varanasi by his judgment
dated January 14, 1964 reversed some of the aforesaid findings while
maintaining the rest.
D
From the judgment of the Addi. Civil Judge, the appellant alone
preferred an appeal to the High Court which by its judgment dated
November 2, 1971 on a careful marshalling of the entire evidence, in •
the light of well-settled pdnciples. agreeingi with the learned Munsif,
set aside the findings of the learned Civil Judge and dee.reed the
E plaintiff's suit in its entirety.
A learned Single Judge, Kirty J ., in the course of his judgment
observed that the evidence on record sufficiently establisl1ed that there
had come into existence a math at Garw~ghat, of which Swami )
Atmavivekanand was the mahant. He referred to the overwhelming
F evidence led by the plaintiff showing that the building kna"11 as
'Shanti Kuti' and certain other buildings constituted an endowment
to the math itself, which was a monastic institution presided over by
the mahant. He further held that the house in, dispute was not the
personal property of Swami Atmavivekanand but formed an accretion
to the math as it had been acquired by him from out of the offerings
G (Bhent) made by the disciples to him as their religious or spiritual
leader for the purposes of the spiritual order of the fraternity and,
therefore, the natural heirs of Swami Atmavivekanand could have no
claim to the property, which must descend to the plaintiff as a succes-
sor ta him.

H
x x x x x x x x
On the question whet:her the plaintiff and his two predecessors,
Swami Atmavivekanand and Swami Sarupanand were not legally com-
' ,

SRI KRISHNA v. MATHURA AHIR (Sen, J.) 669

petent to hold office of the mahant of the math in question, the learned A
Single Judge observed :
"The finding of the court below on this point is in
appellant's favour, the reason given therefor being that the
plaintiff failed to prove that he or his predecessors had
performed Atma Sradh and uttered Pravesh Mantra as man- B
datc.rily prescribed by Hindu law. The factual part of the
finding, viz., the performance of the Sradh and th.a utterance
of the Mantra, is binding in second appeal, but the
conclusion drawn therefrom is one of Jaw."
After referring to the authorities on the subject, he observes :
c
"A reading of the judgments in the above-nokd cases
will show that the various observations therein in rega.rd
. to performance of Atma Sradh and other rites (Prajapathi-
yesthi Viraja Homam etc.) and the utterance of Pravesh
Mantra etc. were made with reference lo particular sects o.r
categories of sanyasis claiming to belong lo a particular D
religious order or class of such order, or with reference to
"Sanatan", i.e,, orthodox, Hindu Dharma. It is true that
.. on cursory reading it would appear as if the observations
formulate indispensable legal requirements of the Hindu law
universally applicable to every (Hindu) ordained sanyasi,
but, upon a careful analysis I have found that that is not E
so. The law as stated therein is generally or usually, bnt
not invariably, applicable."
•
_,1._ In conclusion, he observes :
"In the absence of any proof that the followers of Sant
Math or the tenets of that Math required of its Mahant F
that he must necessarily belong to the twice-born class of
•· Hindus and be a Sanyasi in accordance with all the rites
and ceremonies mentioned in the aforesaid cases, I am not
prepared to hold that Swami Sarupanand and Swami Atma-
vivekanand were legally incompetent to be Mahants of the
G
Math or that the plaintiff is ai person disqualified frcm assum-
ing and holding that office."
He accordingly held tbat the plaintiff and his predecessors, SwawJ
Sarupanand and Swami Atmavivekanand were not legally incompetent
to be the mahants cf the math. They. did not inflict themselves Olli
the religious fraternity of Sant Mat Sampradaya nor had they been H
foisted into the office of ma')Jant against the will or in spite oi the
disapporval of the religious fraternity. In any event, even if the
.'
670 SUPREME COURT REPORTS [1980] 2 S.C.R.

A plaintiff was disqualified being a Sudra, he was entitled to sue as the
de facto mahant.
During the pendency of the appeal, the respondent-plaintiff Mahan!
Harsewanand having died, respondent No. 1, Mahant Harshankranand
was brought on record as an heir and legal representative.
B It would be convenient, at the outset, to deal with the view
expressed by the High Court that the strict rule enjoined by the Smriti
writers as a result of which Sudras were considered to be incapable
of entering the order of yati or sanyasi, has ceased to be valid because
of the fundamental rights guaranteed under Part III of the Constitu- : °'......_('I
.
tion. In our opinion, the learned Judge failed to appreciate that
c Part III of the Constitution does not touch upon the personal laws of \. -
the parties. In applying the personal laws of the parties, be could
not introduce his own concepts of modem timeo but should have
enforced the law as derived from recognised and authoritativ~ sources
of Hindu law, i.e .. Smritis and commentaries referred to, as interpreted
in the judgments of various High Courts, except where such law is,
D
altered by any usage or custom or is modified or ab.regaled by
statute.
On the main, in agreement with the High Court, we are inclined
to take the view that though according to the orthodo,x Smriti writers
a Sudra cannot legitimately enter into a religious Order and although
...
E the strict view does not sanction or tolerate ascetic life of the Sudras,
it cannot be denied that the existing practice all over India is quite
contrary to such orthodox view. In cases, therefore, where the usuge
is established, according to which a Sudra can enter into a religious
orde!'. in the same way as in the case of the twice born classes, such
usage should be given effect to.
)
F The first question, therefore, to consider here is : Whether there
was a math in existence at Garwaghat, and if so, whether the house
in suit was an accretion to the math ? Math means a place fo~ the
residence of ascetics and their pupils, and the like. Since the time of
Sankaracharya, who established Hindu maths, these maths developed
G into institutions devoted to the teaching of different systems of Hindu
religious philosophy, presided over by ascetics, who were held in great
reverence as religious preceptors, and princes and noblemen endowed
these institutions with large grants of property. Dr. Bijan Kumar
Muldierjea in his Tagore Law Lectures on the Hindu Law of Religions
and Charitable Trusts, 4th ed .. p. 321, succinctly states:
H " 'Math' in ordinary language signifies an abode or residence of
ascetics. In legal parlance it connotes a monastic institution presided
over by a superior and established for the use and benefit of ascetics
SRI KRISHNA v. MATHURA AHIR (Sen, !.) 671

belonging to a particular order who generally are disciples or co-disciples A
of the superior,"
x x x x x
The property belonging to a math is in fact attached to the office
of the mahant, and passed by inheritance to no one. who does not
fill the office. The head of a math, as such, is not a truste~ io the
~ense in which' that term is generally understood, but io legal contem- B
plation. he has an estate for life io its permanent endowments and
an absolute property in the income derived from the offerings of his
followers, subject only to the bnrden of maintaining the institution.
He is bound to spend a large part of the income derived from th·~'
· offerings of his followers on charitable or religion~ objects. The words
••, 'the bnrden of maintaining the institution' must be understood to c
include the maintenance of the math, the support of its head and his
disciples and the performance of religious and other charities in con-
nection with it, in accordance with 'usage. See : Semmantha Pandam
v. Sellappa Chetty [1879] ILR 2 Mad. 175 Giyana Sambandha
Pandara Sannadhi v. Kandasami Tambiran (1887) ILR 10 Mad 375;
D
Vidya Furna Tirtha Swami v. Vidyanidhi Tirtha Swamy (1904) ILR
27 Mad 435; Ram Prakash Das v. Anand Das (1916) 43 I.A. 73 (PC),
Vidya Varuthi Thirtha v. Babuswamy Iyer (1920-21) 48 I.A. 302;
Kai/asam Pillai v. Nataji Thambiran (1910) ILR 33 Mad, 265.
'. From the principles, it will be sufficiently dear that a math is an
'f
institutional sanctum presided over by a superior who combines in E
himself the dual office of beiog the religious or spiritual head of the
particular cult or religious fraternity, anct of the manage~ of the secular
properties of the institution of the math. In the instant case, the
J • evidence on reco.rd sufficiently e&tablishes that a math came to be
established at Garwaghat and the building known as 'Bangla Kuti'
' and certain other buildings, iocluding the house in suit constituted F
, the endowment of the math itself.
From a review of the general mass of evidence the High Court,
•· 1
agreeing with the learned Munsif, held that the followers of the 'San~
Mat' fraternity are members of a religious order. The long line of
• witnesses who were all disciples of Swami Sarnpanand and/or Swami.
G
Atmavivekanand have rleady established that it is a religious institution
~
of monastic nature. lt is established for the rnrvice of the 'Sant Mat'
cult, the instruction in its tenets and observance of it~ rites. The
Swamiji who is the Gurn is the Mahant, the spiritual and religious
leader of the fraternity.
According to tbe custom and usage of the 'Sant Mat' Sampradaya, H
as pleaded by the plaintiff, the initiation or a chela by th~ Guru results
in complete renunciation of the world, and he ceases to have all con-
'
672 SUPREME CQTJRT REPORTS [1980] 2 S.C.R.

A nection with his previous Ashramas before becoming a sanyasi. For
becoming a sanyasi it is not necessary that he should be of a particular
Varnashram previously, i.e., even a Sudra can become a sanyasi. The
succession to the office of the Mahan! is .by nomination, i.e .. from Guru
to chela, the Guru initiates the chela after performing the necessary
ceremonies. The person initiated as a chela adopts the life of a sanyasi
B and is pledged to lead a life of celibacy and religious mendicancy. The
sitting mahant hands over the management of the math to one of his
virtuous chelas fittest to >ucceed whom he nominate~ and whom he
wishes to install as mahant after him in his place. He makes clear
this desire to the members d his Samprndaya, and also authorises the
c nominated chela to give Bhesh Dikshawa. After the death of the
mahant, the Bhesh and Sampradaya givo Chadar Mahanti of the math
to the said disciple at the time of the Bhandara.
The Courts below have concurrently found th•.t the custom or
usage, so pleaded has been established. They further found that the
plaintiff Mathura Ahir was initiated as a chela by Swami Atmaviveka-
D
nand and nominated to be his successor. They have also found that
at the Bhandam held after Swami Atmavivekanand's death, the plaintiff
was installed as the Mahan! of Ganvaghat Math by th~ Mahanls! and
Sanyasis belonging to t'he 'Sant Mat' Sampradaya, according to the ...
wishes of Swami Atmavivekanand Paramhans.
E From the evidence on record, there can be no doubt that the math •
at Garwaghat belongs to the 'Sant Mat' Sampradaya, which is a religious
Order. No doubt, the plaintiff Harsewanand, P.W. 15, asserts :
"Followers of any religion can become a sanyasi in our
cult. The practice of becoming sanyasi has been p.revalent
F since Satyuga. Man's life is divided into three Ashramas.
(Again said) : there are four Ashramas viz., Brahmacharya,
6rihastha, Vanaprastha and Sanyas. Varnas are three, '
Dashnami Sanyasis came into existence after Shankaracharya.
f
They are Puri, Gi~i, Bharti, Vana, Tirtha, Aranya, Parvat,
Sagar and Saraswati. I am failing to recollect the name of
G one of them. The fonyasis of Sam Mat are not. Dashnami
Sanyasis. Swarupanandji my Guru or I are not Dashnamis,
but all these cults are related with Sant Math. I know
Niranjani and Nirvani Akharas. They belong to Dashnami
Sanyasis and Sant Mat Sanyasis. We have connections with
Nirvani and Nirnnjani Maths. Some customs of the Maths
H of those Akharas are observed by us also."
(Emphasis supplied)
SRI KRISHNA v. MATHURA AHIR (Sen, I.) 673

This is, however, contrary to what he had stated in his oral pleadings
under 0.10, r. l of the Code of Civil Procedure. The fact that the
'Sant Mat' Sampradaya is one of the Dashnami sects cannot be doubted.
There is unimpeachable testimony of Swami Viveksukhanand, who
along with Swami Atmavivekanand and others was initiated as a chela
by Swami Sarupanand on the same day, at the. same time. Durinf his

,. cross-exmination, this witness states :
"Sri Swarupanandji was Sadhu of Sant Sanyas Sampradai.
'·" ~
.. Sant Sanyas Samprad1i has been obtaining from ancient time.
I This Sampradai is of those ten Sampradai which were founded
• !
by Swami Shankracharji. This (Sampradai) out of the Das-
nam is Purinama. There is no branch in Purinama (Sam-
c
pradai) .... Niranjani and Nirvani Akharas are the Akharas
of"Giri Sampradai. If a Sanyasi of Giri, Puri, Bharti, or of
any Das Nam Sampradru abandons sanyas and re-enters into
the Grahast Ashram he is called a Gosain. The rules for
making disciples in Giri and Puri Sampradai arc ant and the I>
same. The rules in both these Sampra<lai for making chief
disciples, and appointing successor are also one and the same.
The rules, rituals and the ceremonies which am performed
• at the time of installation to gaddi in both these Sampradai
are also one and the same. There is no difference in Giri
and Puri Sampradai. The rules, practices, rituals and cus- E
toms fr•llowed at the time of installation to gaddi in all the
ten sampradaiyas founded by Swami Shankracliaryaji are one
and the same."
(Emphasis supplied)
Though the math at Garwaghat established by Swami Sarupanand was p
of recent origin, the High Court observes that the religious order deno-
minated as 'Sant Mat' has had large following in Punjab and some other
•· parts of India since more than a century. In a sense, therefore,1 Swami
Sarupanand himself did not for the first time evolve any new religious
order.
As regards the origin of the Math. it observed : G

"I have, therefore, no hesitation in holding, in agreement
with the finding of the trial court, that there had come into
existence a Math at Garwaghat, Varanasi of which Swami
Sarupanand was the Mahan!. Here I may also mention that
from the evidence on. record it appears that 'Sant Mat' is not H
of very recent origin. Although the evidence is somewhat
scanty on the point, yet it sufficiently indicates that this Math
674 SUPREME COURT REPORTS [1980] 2 S.C.R.

A has had numerous followers in Punjab aud some other parts
of India since more than a century. In a sense, therefore,
Swami Sarupanand himself did not for the first time evolve,
any new religious order. Here it may aisa be mentioned
that defendants other than the appellant did not seriously
dispute the plaintiff's allegation in regard to the Math in
B question and the allegation that Swami Sarupanand and
thereafter Swami Atmavivekanand were its Mahants."

Referring to the nature of the property, it said :
"Swami Atniavivekanand before becoming a follower of
c the Sant Mat was a Grihasth with a family. From the evid-
ence on the record it transpires that he became a devotee and
a disciple of Swami Sarupanand and severed all connections
with his family. In course of time he was held in Iii,gh
esteem by the followers of the Sant Mat at Varanasi and
othe.r places and large offerings were made to him by the
D devotees. Swami Sarupanand had nominated him to be his
successor and after his death Swami Atmavivekanand did
assume the office of Mahant of the math. There is no evid-
ence from which it can be reasonably inferred that he treated
or set apart the offerings either in their entirety or some •
portion thereof as belonging to him pe.rsonally. On the con-
E trary the evidence on record and the circumstances show
that there was a complete blending of such offerings with the ·
funds of the math and used for its purposes. There is also
no reliable evidence to establish that the offerings which were
made to him were made not for the purposes of the spiritual
order or the fraternity but for his personal aggrandizement.
f
F
Indeed, when a person renounces his family connections and
takes to ascetism it would be difficult tOI hold that he would
thereafter start amassing wealth and property for his personal
benefit or for the benefit of his family with which he had
severed bis connectioo. Unless specifically proved to !he
G contrary, under such circumstances it must be held that the
offerings made to such a person were not offerings made to
him personally for his persqnal benefit but bad been made
for the benefit of the math or the religious institution itself.
In such a case, to my mind, the natural heirs of the person
COil1Cerned could have no claim to the property which the
H person came by in his capacity as the religious or spiritual
leader. The house in suit must be, held to be an accretion
to the Math."
•
SRI KRISHNA v. MATllURA AH!R (Sen, !.)

.,
675

. All this is borne out by the testimony of plaintiff's witnessec. The
institution was really built up by Swami Atmavivekanand, who was
held in great veneration by the followers of the sect. He preached the
tenets of 'Sant Mat' and had a large following. His 'Sant !\fat' fraternity
comprised of thousands of Grihastha and Viraktd disciples who made
large offeripgs. All the witnesses speak of such offerings in cash or
kind or in the shape of immovable property which were endowed to• B

·~J
.
~.
the math. There are a number of documents showing the endowment
by the disciples of their properties to the math, wherein tlhey have
described themselves as 'disciples of Swami Atmavivekanand' and he is
described therein as 'Mnbant of the Garwaghat Math'. Even Avadesh
_, 1 Narain, a Judicial Magistrate, D.W. 1, who practised as a lawyer at
Varanasi before be was appointed as a Judicial Officer, admits that
c
Swami Atmavivekanand had a large number of disciples in Uttar
Pradesh and Bihar, and Vhat the property of 'Bangla Kuti' might be
worth lakhs of mpees. The two houses at Varanasi, including the suit
house, were purchased by Swami Atmavivekanand from out of the
offerings (Bhent) made by his disciples. We have, therefore, no hesi- D
tation in upholding the finding of the High Court as regards the existence
of a math at Garwaghat and the suit property being, the math property.
We may now deal with the main questions on which the decision
' of the appeal must turn. It has been argued that according to the
Smritis a Sudra cannot be a sanyasi and, therefore, the plaintiff conld
E
not enter the Order of a yati or sanyasi. It has further been argued
that there is no evidence on record in proof of the fact that the plaintiff
and his two predecessors Swami Sarupanand and Swami Atmaviveka-
nand had performed Atma Sradh or recited Pravesh Mantra and, there-
fore, they cannot be regarded as Hindu sanyasis. It, therefore, becomes
necessary to trace the origin of Hindu sanyasis belonging to the Dasnami F
sects founded by the great Sankaracharya, of which the 'Sant Mat'
Sampradaya appears to be a religious denomination i.e., a sub-sect.
• The first question is, whether a Brahman. alone can become a sanyasi
among Dasnamis ? The second question is, what are the essential
ceremonies prerequisite for the initiation of a Dasnami sanyasi ? The
third questiOlll is, what is the mode of succession to the office a mahant G
of a math or Asthal belonging to any of the Dasnami sects ? It will
be convenient to take up the last point first.
The law is well settled that succession to mahantship of a math
~r r.eli~ous institution is regulated by custom or usagei of the particular
mst1tu!ton, except where a rule of succession is laid down by the B
founder himself w:ho created the endowment : vide Genda Puri v.
Chatar Puri [1886] I.A. 100 @ 105, Sita! Das v. Sant Ram A.I.R.
•
676 SUPREME COURT REPORTS [19o0j 2 S.C.R.

A 1954 SC 606; Mahalingam Thambiren v. La Sri Kasivasi [1974] 2
s.c.R. 74.
x x x x x
x x x x x
One who enters into a religious order severs his connection with
the members of his natural family. He is accordingly excluded from
B inheritance. Entrance to a relig'ous order, is tantamount to civil death
so as to cause a complete severance of his connection with his
relations, as well as with his property. Neither he nor his natural
relatives can sncceed to each other's properties. Any property
which may be subsequently acquired by persons adopting religious
orders passes to their religious relations. The persons who are
c excluded on this ground come under three heads, the V anaprastha
or hermit; the Sanyasi or Yati, or ascetic, and the Brallmachari, or
perpetual religious student. In order to bring a person, under these
heads it is necessary to show an absolute abandonment by him of all
secular property, and a complete and final withdrawal from earthly
affairs. The mere fact that a persons calls himself a Byragi, or religious
0
mendicant, or indeed that he is such, does not of itself disentitle him
to succeed to property. Nor does any Sudra come undev this disquali-
fication, unless by usage. This civil death does not prevent the person
\vho enters into an order from acquiring and holding private property
which will devolve, not of course upon his natural relations, but
according to special rules of inheritance. But it would be otherwise
,'
if there is no civil death in the eye of the law, but only the holding •
by a man of ceJtain religious opinions or professions(!).
Special rules are propounded for succession to the property of a
hermit, of an ascetic, and of a processed student. Yajnavalkya states
a special rule of succession in regard to the wealth of ascetics and the
F like: "The heirs who take the wealth of a Vanaprastha (a hermit),
of a Y ati (an ascetic) and a Brahmaclwrin (a student) are in their
ocder, the preceptor, the virtuous pupil, and one who is supposed
brother and belonging to the same order". The Mitakshara explains
thus(') : "A spiritual brother belonging to the same hermitage
G
(dharmabhratrekatirthi) takes the goods of the hermit (vanaprastha).
A virtuous pupil (sacchishya) takes the property of a yati (as ascetic).
The preceptor (acharya) is heir to the Brahmachari (professed student).
But on failure of these, any one belonging to the same order or hermit-
age takes the property; even though sons and other natural heirs exist."
The property that is referred to is explained in Mitakshara and in
B the Viramitrodaya as consisting of clothes, books and other requisite
(!) M'yne's Hindu Lc,w & Usrge, 11th ed., pp. 721-22.
(2) Ch. II, Sec. vm, SI. I-6.
SRI KRISHNA v. MATHURA AHJR (Sen, J.) 677

articles. Practically, however, such cases seldom arise. When a A
hermit or ascetic holds any appreciable extent of, property, he generally
holds it as the head of some math or as the manager of some religious
or charitable endowment, and succession to such property is regulated
by the special custom of the foundation.
Succession to the office of the Mahant or Mathadhipathi or Pandara
B
Sannadhi is to be regulated by the custom of the particular institution.
Even where the Mahan! has the power to appoint his successor, it is
the custom in the various Maths that such appointments should be
confirmed or recognised by the members of the religions fraternity to
which the deceased belonged.
According to the text of Yajnavalkya referred to above, the property c
of a life-long student goes to his preceptor, that of a hermit or
Vanaprastha goes to his religious brother and that of a sanyasi or Yati
goes to his virtuous disciple. The principle, so far as it affects maths,
is shortly this, viz., 'a virtuous pupil takes the property'. The parti-
cular mode in which the virtuous' pupil, that is, not merely a clzela, or a
shishy«, fittest to succeed, is ascertained or selected is a matter either D
of express direction on the part of the founder or of custom in the
case of each foundation. There are instances of maths in which the
mahantship descends from Guru to chela i.e., the existing mahant alone
appoints his successor, but the general rule is that the maths of the
• same sect in a district, or n1aths having a common origin, are asso-
E
ciated together-the mahants of these acknowledging one of their
member as a head who is for some reason pre-eminent; and on the
occasion of the death of one, the others assemble to elect a successor
out of the chelas or disciples of the deceased, if possible-or if there
be none of them qualified then from the chelas of another mahant.(I)
According !0 the Dharmasastras, i11 the strict legal sense, a Sudra F
cannot become a sanyasi or ascetic. Mahamohopadhya Dr.~P. V. Kane
• in 'History of Dharmasastra', Vol. 2, Pt. 1, p. 163, observes :
.. "As the sudra could not be initiated into Vedic study, the
only asrama out of the four that he was entitled to was that
of the householder. In th~ Anusasanaparva (l 65. 10) we
G
read 'I am a sudra and so I have no right to resort to the
four asramas'. In the Santiparva (63. 12-14) it is said, 'in
the case of a sudra who performs service (of the higher
classes), who has done his duty, who has raised offspring,
who has only a short span of lire left or is reduced to the
10th stage (i.e. is above 90 years of age), the fruits of all B
(1) Dr. Jogesh Chandra Ghose: 'principles of Hindu Law', 3rd. ed., pp.
914-15.
678 SUPREME COU~T REPORTS [1980] 2 S.C.R.

A asramas are laid down (as obtained by him) except of the
fourth'. Medhatithi on Mann, VI.97 explai'ns these words
as meaning that the sudra by serving brahmanas and pro-
creating offspring as a householder acquires the merit of all
asramas except moksa which is the reward of the proper
observance of the duties of the fourth asrama."
B
Although the orthodox view does not sanction or tolerate
ascetic life of the Sudras, the existing practice all over India is quite
contrary to such orthodox views. In Mukherjea's Hindu Law of
Religious and Charitable Trusts, 4th ed., p.328, it is said :
". . . . the practice of establishing Maths which began
c with Brahmrn asce'.ics gradually spread to the Sudras and in
course of time it was adopted by dissenting religious sects
like the Jains, Kabir Panthis, Nanak Parrthis, Jangamus and
others though thoy do not believe i'n the authority of the
Vedas or in the tenets of orthodox Hindu religion."
D At page 338, it is observed :
" ...... according to orthodox Smriti writers. a Sudra
cannot lcgitimat.ely enter into a religious order. Conse-
quently, tho texts of Hindu Law relating to exclusion from
inheritance applicable to a yati or a sannyasi do not, in terms,
E apply to Sndra ascetics. On this view, it has been held in
a series of cases that a Sndra ascetic is not incapable of in-
heriting the property of his natural relations under the ordi-
nary law of inheritance. Although orthodox view does not
sanaion or tolerate ascetic life of the Sudras, it cannot be
denied that the existing practice all over India is quite con-
F trary to such orthodox views. In· cases, therefore, where
the usage is established, according to which the property of a
Sudra ascdic devolves in the same way as the proper:y of the
ascetics of the twice born classes, such usages should be
given effect to."
(Emphasis supplied)
G
In the words o[ the Privy Council in Collector of Madura v.
Moottoo Ramalinga('), 'under the Hindu system of law, clear proof
of usage will outweigh the written text of the law'.
Golapchandra Sarkar Sastri in his Hindu Law, 8th ed., at pp. 653-
56, in a passage based on translation of slokas from Maha-Nirvana
H Tantra, observes that in Kali Yug, with numerous sects having their
12 M.l.A. 436.
SRI KRISHNA v. MATHURA AHIR (Sen,!.) 679

peculiar rites for being ordained to a religious order. there are five A
castes ( varnas), i.e., a fifth caste comprising of all other beings. He
further observes that sanyasam according to Vedic rites does not exist
and that all the five castes can become Avadhutha Sanyasis :

". . . . in the advanced state of the Kali age, the Brah-
manas and the other (four) castes are all entitled to these B
two orders of life. The Brahman, the Kshatriya, the Vaisya,
the Sudra, and the general body of human beings, these five
are entitled to be initiated as Sannyasis or ascetics according

~
I
' to Tantric system."

The orthodox rule laid down in the Mitakshara that only the
Brahman can enter the fourth Asram of life and are eligible to become
c

sanyasis, has therefore, been commented upon by Golapchandra Sarkar
Sastri at p. 662 :
"It has been held that a Sudta cannot become a sannyasi
or ascetic. This is undoubtedly the doctrine propounded in D
the Smritis. But the learned Judges have not taken into con-
sideration the modern usages introduced by the Vaishnava
and Tantrika and other systems according to which a Sudra
and even a non-Hindu such as Mohamedan may become a
Hindu sannyasi. There are many religious sects of ascetics
among whom caste distinction is unknown, who accordingly E
initiate and admit Sudras into their brorherhood if otherwise
qualified. In esoteric Hinduism also, caste is individualistic
not hereditary, it being determined by qualification and not
by birth. The highest virtue taught by the Hindu religion
is that a man should regard other persons and beings as his F
own self reproduced in them, as the same Supreme Soul per-
vades them all." (Emphasis supplied)

Here the question arises as to what classes of Hindus should be
denominated as Sudras. It is undoubted that there were originally
four classes : (1) the Brahmanas. (2) the Kshatriyas, (3) the G
Vaishyas, and ( 4) the Sudras. The first three were the regenerate, or
twice-born, classes; the latter, the servile class. The three rege:nerate
classes exist, it is true; but it often becomes difficult to distinguish a
Sudra from one of the regenerate classes. It is pointed out by Golap·
chandra Sarkar Sastri at p. 113 :
H
"The Smritis, which have thrust into prominence this sys-
tem, divide men into two large classes namely, the Sudras
6-91SCij80
680 SUPREME COURT REPORTS [1980] 2 S.C.R.

A and the Twice-born. The study of the sacred literature forlll)>
th~ principle of this distinction. They ordain that by birth
all men are alike to Sudras, and the second birth depends on
the study of the sacred literature. Thus Sankha, one of the
compilers of the Dharma-Shastras, declares "Brahmanas (by
birth) am, however, regarded by the wise to be equal to
B Sudras until they are born in the Veda (i.e., learn the sacred
li'.erature), but after that (i.e., this second birth) they are
deemed twire-bom".
Passages to the same effect are found in most of the
codes, according to which the recognition of the title of the
c Twice-born to superiority over the Sudras, depends upon ac-
quisition of the knowledge of the Vedas."
The lear'ned author then goes on to say at p.184 :
"According to the Smritis, every man is by birth a
sudra; it is by learning the sacred literature, that a man be-
D comes twice-born. The privilege of studying the sacred lite-
rature is, no doubt. tlenied to the sudras as well as to the
females of the so-called twice-born claooes. But the status
of being twice-born depends on the acquisition of knowledge
of the sacred literature. Manu ordains that a twice-born
mall shall abide with the preceptor, and study the Vedas for
E thirty-six years or half or a quarter of that period, or until
knowledge of the same is acquired."
The consequence of omitting to do the same, according to Manu, is
that a twice-born man, who without studying the Vedas, applies dili-
gent attention to anything else, soon falls even when living together
F with his descendants, to the condition of a Sudra. The learned author
has observed that the majority of the so-called twice-born classes have
accordingly become long since reduced to the position of Sudras by
reason of neglecting the study of the Vedas from generation to genera-
tion.
The learned Single Judge aecordingly observes :
G
"It will thus be seen that originally every person was
deemed to be born a Sudra and that it was by virtue of in-
tensive study of Vedas that a person attained the status of a
twice-born petson. With the passage of time running into
tholll5ands of years, it is evident that the original hall-marks
H for classification of Sudras and twice-bot"Q people gradually
disappeared and degenerated into the rigid caste system based
o'n birth."
SRI KRISHNA v. MATHURA AHIR (Sen, J.) 681

, As Dr. Mukherjea observes, the disciples of Sankara were all
Brahmans and originally, according to the rule laid down in SOJlyas
Grahan Paddhati, the authorship of which is imputed to Sankara him-
self, only the twice-born people can become sanyasis of the Dasnami
orders. As the four stages of life have, in the Vedas, been prescribed
only for the twice-born, no Sudra can, strictly speaking, become an
ascetic, and that is the view entertained by the Smriti writers.('). B'

According to the Mitakshara, only the Brahmans can enter the
fourth Asram of life and are eligible to become sanyasis; and this view

<
j
I
" is supported by certain passages from Manu where 'Pravrajya', i.e.
exit from the house, has been spoken of or prescribed for the Brahmans
alone, and a text of the Sruiti which says ''the Brahmans should become c
ascetics". According to Nirnaya Sindhu, which has been quoted in
West and Buhler's Digest of Hindu Law(2), a Kshatriya and a Vaishya
can also enter into an order of sanyasis.

Upon a view of all these authorities, it was held by the Madras
High Court in Dharampuram v. Virapandiyan (3 ) and the Calcutta D
High Court in Barish Chandra v. Atir Mahamed(4), that a Sudra can
not become a sanyasi under Hindu Law, and consequently the devolu-
tion of property of a Sudra who purported to renounce the world and
become an ascetic would be governed by the ordinary law of inheri-
tance.
E
Asceticism in India, perhaps more than in a'ny other country, has
been under the definite and strong sanction of religion. In the doc-
trine of the four asramas, asceticism was made an integral part of the
orthodox Hindu life, and it became the duty of every Hindu, as ad-
vanced age overtook him, homeless and a wanderer to chasten himself
with austerities. Formally this was to be done for the sake of detach- F
ing himself from earthly ties, and of realizing union with Brahman.
And a religious motive was thus supplied for that which in itself was
a welcome release from responsibility, care, and the minute require-
ments of an elaborate social code. In due course, with the advance-
ment of knowledge, the shackles of the caste system were broken
G
through and the privileges and powers of the ascetic lifo were extended
to Sudras.

(I) B.K. Mukherjea : 'The Hindn Law of Religious and Charitable Trusts'
(Tagore Law Lectures). 41h ed., pp. 324-325.
(2) West Buhler, 'Hindu Law', 3rd ed., p. 555.
H
(3) (1899) l.L.R. 22 Mad. 302.
(4) (1913) I.L.R. 40 Cal. 545.
682 SUPREME COURT REPORTS (1980] 2 S.C.R.

\ A Hindu asceticism represented, further, a revolt from, or at least a
protest against, the tyranny of caste. In its origin probably remote
from Brahmanism, and conveying the ordinary idea that bodily pain
was profitable for the advancement and purification of the spirit, the
ascetic life became, in association with Hinduism and under the pres-
criptive sanction of Hindu law itself, a refuge from the burden of caste
{ B rules and ostracisms.(')
In Encyclopaedia of Religion and Ethics, Ed. by James Hastings,
Vol. II, p.91, it is observed:
" .... In the first instance apparently, the right and pri-
vilege of asceticism, according to Hindu custom or Jaw, be-
c Jo·nged to Brahmans alone; it was then extended to all the
twice-born, and finally all restrictions wern removed, and ad-
mission into the ranks of the ascetics was accorded to men
of every position and degree."

This is based on the following passage from the Ramayana, Uttara
D Kanda, 74.9ff., qnoted in J. Muir's Original Sanskrit Text, i.119f:
"Formerly in the krta age Brahmans alone practised
tapas; none who was not a Brahman did so in that enlightened
age. . . . then came the treta age,. . . . in which the
Ksatriyas were born, distinguished still by their former tapas
E ..... Those Brahmans wd Ksatriyas who lived in the treta
practised tapas, and the rest of mankind obedience ... In the
dvapara age tapru entered into the Vaisyas. Thus in the
cours'~ of three ages it entered into three castes; and in the
three ages righteousness (dhanna) was established in three
castes. But the Sudra does not attain to righteousness
F through the (three) ages .... such observance will belong to
the future race of Sudras in the kali age, but is unrighteous in
the extreme if practised by that caste in the dvapara."
(Manu : i. 86)
It is, therefore, evident that with reluctance the right to ascetic life was
G extended to Sudras and in due recognition of their status, they were
treated as Hindu sanyasis. At the present time, there is no dis'.inction
or barrier; any one may become an ascetic, a'nd the vows are not neces-
sarily :ifelong. Some sects, however, still restrict membership to
Brahmanas, or at least to men of the three higher castes.
The principle laid down by the Madras High Court in Dharma-
H
puram v. Virapandiyan (supra) and the Calcutta High Conrt in
(I) Encyclopaedia of Religion and Ethics, Ed. by James Hastings, Vol. II,p. 91.
SRI KRISHNA v. MATHURA AHIR (Sen,!.) 683

Harish Chandra v. Atir Mahamed (supra) regulating the mode of
devolution of property of a Sudras who becomes an ascetic is, how-
ever, not applicable to after-acquired property of a Hindu sa'.nyasi. As
has been said above, when a layman becomes an ascetic, his connec-
tion with his natural family and existing property rights are extinguish-
ed. If he acquires any property subsequent to his becoming an asce-
tic, such property passes on his death not to his '.natural but to his B
spiritual heirs.
It would be convenient next to deal with the question, firstly, as to
whether in the 'Sant Mat' Sampradaya which being a sect of the
Dasnamis, a Sudra cannot enter the order of a yati or a sanyasi; and
secondly, whether performance of Atma Sradh and the recitation of c
Pravesh Mantra are ceremonies essential for the initiation of a chela in
the 'Sant Mat' fraternity. That depends on whether the matter falls
to be governed by the Smritis or is regulated by the custom or usage
of the 'Sant Mat' Sampradaya which was one of the Dasnami sects.
About the eighth century A.D., Sankaracharya, the greatest Hrndu D
scholar and philosopher of modern India, defeated the Buddhists in
argument and re-established Hinduism as the dominant religion of
India. Sankara was an ascetic and founded schools of ascetics. Hindu
scholars and philosophers like Ma'.ndana Misra, attempted to prove
against him that such ascetism was against the law of the Hindus. But
all opposition was overborne by the commandrng influence of E
Sankara, who established four maths or seats of religion at four ends
of India---the Sringeri Math on the Sringeri Hills in the south, the
Sharda Math at Dwarka in the west, the Jyotir Math at Badrikashram
i'r1 the north, and the Govardhan Math at Puri in the east and Mandana
himself became a Sanyasi disciple nuder the name of Sureswara. The
monks ordained by Sankara and his disciples were called Sanyasis. F
Each of the maths has a sanyasi at its head two bears the title of
Sankaracharya iu general. Sankara is said to have four principal
disciples who were all Brahmans, from whom the ten divisions of the
• Order-hence named the 'te'n-named' or 'Dasnami Dandis' originated.
These are: Tirtha, 'shrine'; Ashrama, 'order'; Vana, 'wood'; Aranya, G
- 'forest', 'desert', Saraswati and Bharti, 'the goddesses of learning and
speech'; Puri, 'city'; Giri and Parvata, 'a hill'; and Sagra, 'the ocean'.
The orthodox Hindu recognises no other sanyasis.(') Kabir and
Nanka also established monasteries on the lines or Sankara. Chaitanya,
the pure, the subtle mystic of N aidia, the greatest exponent and exam-
H
'1 ·'- (1) Dr. J.C. Ghose : 'The Principles of Hindu Law' : 3rd ed., Vol. l, pp.
910-914.
684 SUPREME COURT REPORTS (1980J 2 S.C.R.

.A pie of Bhakti, originally belonged to one of Sankara's orders, namely
Bharati, though he violently repudiated Sankara's pantheism, and his
followers founded the class of ascetics known as Byragis, who too have
1
their establishments. But it is the schools of Sanyasis founded by
Sankara that are now predominant and are the wealthiest, and it is
of them that we should speak first.
B
Sankara founded his monastic system on the lines of the Buddhis-
tic Sanghaa:amas, which were found existing at the time. The rules
of the Hindu and the Buddhistic institutions, so far as the internal
management was concerned, were very similar. The Sangharama had
c a superior under whose management the establishment was and so
had all the Maths of Sankara, the snpcriors of which were called
Mahants and Acharyas, etc. The superior of a Math had the control
of all the property, for he was the Guru whose power no one could
question, and the nomination of his successor ordinarily lay with him.
As a rule, the best and most erudite among the disciples, upon whom
D the choice of the congregation would naturally fall, was nominated
and there was rarely any contention. In course of time, however,
as the wealth of the Maths increased and worldliness and all the vices
of an idle luxurious life took the place of stern austerity and scholar-
ship above that of all Buddhists and other schismatics, by which
Sankara intended the Sanyasis, specially, the superiors, should be dis- •
E tinguished, worldly ideas became the ruling ideas of the establishments.

In imiMion of the Maths of Sankara, the followers of Ramanuja
also founded Maths reaching the Vishishtadwaita system in various
parts of India. The followers of Madhvacharya, the chief exponent
F of the Dwaita system, also founded i\faL'ls, the chief among whom are
the well-known eight Maths at Udipi. Similarly, there arc Maths of
the followers of Ramanund and Nimbacharya among the orthodox and
of Nanak and Kabir among schismatics. There are also many Maths
founded by lesser teachers. All the strictly orthodox Maths arc Maths •
of the three regenerate classes. But the followers of Chaitanya in Bengal
G and of a teacher named Shankara in Assam have Maths or Akharas
in which Sudras are admitted. It is, however, only in Madras that
the Shaivas have Sudra Maths. The Tantras allow Sudras to become
Sanyasis and probably, these are based on the Tantras. The Sudra
Maths of Dharmapuram and Tiruvaduthorai are the chief among the
Sudra Maths of the Saiva Siddhantam School: Sammantha Pandara
B v. Sellappa Chetti,(') G. S. Pandara Sannadhi v. Kandaswami Tam-
(1) I.LR. 2 Mad. 175.
SRI KRt"""SifNA v. MATHURA AHIR (Sen, J.) 685

biran(l), Vidyapurna Tirthaswami v. Vidhyanidhi Tirt1Iasy,,ami( 2 ), A
and Kailasam Pillai v. Nataraja Thambiran(').
The most respectable members of this Order of Hindn ascetics
known as Saiva Gosains are the spiritual descendants of Sankara-
charya, the very incarnation of the strictest Brahmanism. Saiva
Gosains fell into two classes-monks known as Mathadhari as contrast- B
ed with Gharbari, or laymen. The true Dandi should, in accordance
with the precepts of Manu Laws (VI. 41ff) live alone near to, but not
within a city.
Of Saiva mendicants and ascetic orders, Dandis or staff-bearers,
occnpy a place of pre-eminence. They worship Lord Siva in his form C
of Bhairava, the 'Terrible' and profess to adore N!rguna and Niran-
jana, the deity devoid of attribute or passion. A sub-section of this
Order are the Dandi Dasnamis or Dandi of ten-names, s~ed from
their assuming one of the names of Sankara's four disciples and six
of their pupils. ( 4 & •)
D
It is customary to consider the two religious orders of Dandis and
Dasnamis as forming but one division. The classification is not, in
every instance, correct but the practices of the two are, in many ins-
tances, blended and both denominations are accurately applicable to
the same individual(').
The Dandis, properly so-called, are the legitimate repre~entatives E
of the fourth Asrama, or mendicant life, into which the Hindu, accord-
ing to the instructions of his inspired legislators, is to enter, after
passing through the previous stages of student, householder and her-
mit. Adopting, as a general guide, the rules laid down in the original
works, the Dandi is distinguished ( 5 & 6 ) by carrying a small Dand, • F
or wand, with several processes or projections from it, and a piece
> of cloth dyed with ;ed ochre in which the Brahmanical cord is sup-
posed to be enshrined, att'ached to it. They develop within them-
seleves a complete detachment from the things of enjoyment either
of this world or the next. Many Brahmans, even Pandits, or learned
G
(!) l.L.R. 10 Mad. 375,
(l) l.L.R. 27 Mad. 435.
(3) I.L.R. 33 Mad. 265.
(4) H.H. Wilson, M. A. F.R.S. : 'Hindu Religions'-The Society for the
Resuscitation of Indian Literature, Calcutta, 1899.
(5) H.H. Wilson, M.A. F.R.S.: 'Religious Sects of the Hindus', Trubner &
Co., London, 1861, pp. 191-205. H
(6) Dr. J. N. Bhattacharjee : 'Hindu Castes and Sects' : Thacker, Spink &
Co. Calcutta, 1896, pt. 2' Ch. III to V, pp. 374-387.
686 SUPREME COURT REPORTS (1981)] 2 S.C.R.

A Brahmans, come to them for instruction, which they impart freely,
without the smallest recompense. All classes of the community pay
them the great honour, even worship them(').
The Dandis keep themselves very distinct from the rest of the
community. 'They are Brahmans, and receive disciples only from the
B Brahmans. They lead a very austere life. They do not touch fire or
metal, or vessels made of any sort of metal. It is equally impossible
also for them to handle money. They shave their hair and beard. They
wear one long unsewn reddish cloth, thrown about the person. Al-
though they are on principle penniless, yet they do not beg. Their
dependence on the kindness and care of others is thus of the most
c absolute draracter. Yet they are not reduced to distress or even to
want; they are fed by the Brahmans, and the Gosains, another class
of devotees. They sleep on the ground, and once or twice in the
day go round to collect food and alms, for which they must not ask,
but contentedly receive what is given. According to the stated rule,
they must not approach a house to beg until the regular meal-time
D is passed; wh~1t remains over is the portion of the mendicant.
A Dandi should live alone, and near to, but not within a city; •
but this rule is rarely observed, and in general the Dandis are found
in cities collected like other mendicants in maths. The Dandi has no
particular time or mode of worship, but spends his time in meditation,
E or in practices corresponding to those of Yoga, and in the study of
the Vedanta works, especially according to the precepts of the great
Sankaracharya. As the preceptor was an incarnation of Lord Siva,
the Dandis reverence that deity; and his incarnations, in preference to
the other members of the Triad, whence they are included amongst his
votaries.
F'
Prof. Wilson in his 'Hindu Religions' observes :
"Any Hindu of the first three classes may become Sannyasi
or Dandi, or in these degenerate days, a Hindu of any
caste may adopt the life and emblems of this order."
(Emphasis supplied)
G
The Dasnami Dandis. who are regarded as the descendents of the
original members of the fraternity, are said to refer their origin to
Sankaracharya.
There are but three, and part of a fourth ascetic class, or those
II called Tiratha or Indra, Asrama, Saraswati and Bharati who are still
(1) M.A. Sherring : 'Hindu Tribes and Castes' : Trubner & Co., London,
...
Pt. III, Ch. 2, pp. 255-260.
SRI KRISHNA v. MATHURA AHIR (Sen, !.) 687

regarded as really Sankara's Dandis. The rest, i.e. the remammg A
six and a half of the Dasnamis are considered as having fallen from
the purity of practice necessary to the Dandis, are still, in general
religious characters, and are usually denominated Atits. These are
the Atits or A' Dandis viz., the Vanas, Aranyas, Puris, Giris, Parvatas,
Sagaras and half the Bharatis, reputed to have fallen to some extent
B
from orthodoxy, but are still looked upon as religious avtars. The
main distinction between the Dandis and the Atits is that the
latter does not carry the staff i.e. a trishul. They differ from the
former also in their use of clothing, money, and ornaments, their
methods of preparing food, and their admission of members from
any order of Hindus. Some of them lead an ascetic life, while others c
mix freely in the world, carry on trade and acquire property. Most
of them are celibate, but some of them marry and ::ire often known
as samyogi or gharbari Atits. They are often collected in maths or
monastries. They wear ochre-coloured garments and carry a rosary
of rudraksa seeds sacred to Lord Siva. Their religious theories
(when they have any) are based on the advaita Vedants of their D
founder Sankaracharya ( 1) •
, There is also a snb-division of the Puri division of the Dasnami
sect. They have tenets much in common, based on the central
idea that the Supreme Deity is incomprehensible or, as they say,
'unseeable'. They denounce idolatory. This more or less conforms
E
to the tenets of the 'Sant Mat' sect. It is proved by the evidence
on record that followers of this sect treat-the Guru as the incarnation
of God. They have no faith in inanimate idols installed in temples
nor do they worship them in their cnlt. There are no caste restric-
tions and anyone can be admitted into the Sant Mat fraternity.
That takes us to the next question as to whether in the absence F
of proof of the performance of Atma Sradh and recitation of Pravesh
Mantra neither the plaintiff nor his two predecessors Swami Sarupa-
Dand and Swami Atmavivekanand could be regarded as a Hindu
• sanyasi.
In order to prove that a person has adopted the life of a sanyasi, G
it must be shown that he has actually rehnquished and abandoned
all worldly possessions and relinquished all desire for them or that
such ceremonies are performed which indicate the severance of his
natural family and his secnlar life. It mnst also be proved, in case
of orthodox sanyasis, that necessary ceremonies have been performed,
suc:lt as Pindadana or Birajahoma or Projapathiyesthi without which H
the renunciation will not be complete.
(I) Encyclopaedia of Religion Ethics, Ed. by James Hastings, Vol. 2, pp. 194-1
688 SUPREME COURT REPORTS [1980] 2 S.C.R.

A Among Dasnamis, a ceremony called the Bijja Homa i.e., the
Biraja Homa has been considered essential. The recitation of the
Presha Mantram or the renunciation formula is of course indispensable ·'
and has been considered essential by the different High Courts.
According to Manu giving up of all wordly property is essential.

B In Sherring's 'Hindu Tribes and Castes', pp. 256-67, the cere-
monies prescribed for the initiation of a Dasnami sanyasi are stated
thus : Jrl
"The ceremony observed at the creation of a Gosain is as
follows : The candidate is generally a boy, but may be an
adult. At the Shiva-ratri festival (in honour of Shiva)
c water brought from a tank, in which an image of the gcd
has been deposited, is applied to the head of the novitiate,
which is thereupon shaved The guru, or spiritual guide,
whispers to the disciple a mantra or sacred text. In honour
of the event all the Gosains in the neighbourhood assemble
together, and give their new member their blessing; and a
sweetmeat called laddu, made very large is distributed amongst
them. The novitiate is now regarded as a Gosain, but he
does not become a perfect one until the Vija'ya Hom has
been performed, at which a Gosain, famous for religion and
learning gives him the original mantra of Shiva. The cere-
mony generally occupies three days in Banaras. On the
•
E
first day, the Gosain is again shaved, leaving a tuft on the
top of the head called in Hindi Chundi, but in Sanskrit,
Shikha. For that day he is considered to be a Brahman,
and is obliged to beg at a few houses. On the second
day, he is held to be a Bramhachari, and wears coloured
F garments, and also the janeo or sacred cord. On the third
day, the janeo is taken from him, and the Chundi is cut off.
The Mantra of Shiva is made known to him, and also the
Rudri Gayatri (not the usual one daily pronounced by
Brahmans). He is now a full Gosain or Wan-parast, is
removed from other persons, and abandons the secular
G world. Henceforth he is bound to observe all the tenets
of the Gosains."
ln Gossain Ramdhan Puri & Ors. v. Gossain Dalmir Puri(')
Mookerjee and Carnduff JJ., observed at p. 203 :
"Every aspirant for entrance into the order of sanyasis
H has to pass through a period of probation. Upon his first
arrival at the mona>tery his habits and character are closely
(1) (1909-10) 14 CWN 191.
SRI KRISHNA v. MATHURA AHIR (Sen,!.) 689

watched for some days, and enquiries are made into his A
caste, for the sanyasis admit into their order ordinarily
members of the twice-born classes and very rarely take
members of the fourth class. If the novice is approved, his
head is shaved, his name is changed and npon the per-
formance of this preliminary ceremony he is regarded as

~~
,
\
a probationer for entrance into the order. The final cere-
mony, however, which is called the Biraja Homa ceremony,
is not performed for many months, and sometimes for
many years. During this period of apprenticeship it is open
B

j to the chela to return to his natural family, but after the
perfomiancc of the final ceremony his connection with the
world is deemed to have been finally severed." c
In support of these observations, the learned Judges relied on the
note of Warden on the customs of Gossains printed as an appendix
to Steel's 'Law and Custom of Hindu Castes'.
As regards Swami Sarupanand, the learned Munsif rightly obser-
ves that 'it would be unjust to place an umeasonble burden on the D
plaintiff for leading direct evidence of his initiation, as Swami Sarupa-
nand came to Varanasi from distant land and long ago. The truth
has to be discerned out of circumstantial evidence and other material
on record.' That evidence clearly shows that Swami Sarupanand
was acknowledged by his numerous followers to be the head of the
E
'Sant Mat' fraternity. That Swami Sarupanand paid the debt of
nature in 1936 at Meerut and that his Smadhi is situate there is not
disputed. The oral evidence lead by the plaintiff in proof of the
fact that after the death of Swami, his Blzandara took place at
Meerut as well as at Garwaghat is irrebuttable. It is common know-
ledge that sauyasis are not cremated but arc buried, or their bodies con- F
signed to some river, and that after their demise a Bhandara takes
place. Defendants Nos. 1 to 4 admitted in their written statement
that Swami Surupanand was a 'Paramhans' and that a Bhandara had
taken place after his death. The prefixes 'Swami' and 'Paramhans'
are used for sanyasis and not for men of the world.
In the case of Swami Atmavivekanand there is overwhelming G
evidence in proof of the fact that the requisite ceremonies of Biraja-
homa or Prajapathiyesthi were performed. Swami Vivekasukhanand,
who was initiated as a chela along with Swami Atmavivekanand and
others speaks of the performance of Brijahoma and Prajapathiyesthi
at the time of their taking sanyas and states :
H
"I attend satsang. I know Swami Sarupa Nandji. He was
a Sanyasi. I am in Sanyas Ashram. I became Sanyasi
690 SUPREME COURT REPORTS [1980] ~ S.C.R.

A about 28-29 years ago. Four other persons had also taken
Sanyas Oil one and the same day. I had taken Sanyas.
Their names are Swami Atma Vivekanandji, Swami Aju-
niya Nandaji, Swami Abheda Nandji and Swami Purna
Shabda Nandji. Swami Atma Viveka Nandji had also
taken Sanyas on that very day. Praja Praslzit ...... and
B Virja llom Ceremonies were performed at the time of my
takillg Sanyas. Our heads were shaven from before that.
Our Gurudeo had taken the choote. The sacred threads
were burnt in the fire. Our white clothes were removed,
and in its place we were directed to put on the clothes of
the ochre colour. Guru Maharaj had whispered the Gum
c Mantra into our ears. Hom (Samigri) were sent for, from
the Mandleshwar of Benaras, and Birja llom was got per-
formed with it. We were at that time relieved off, from
all the bondages of Grahast Ashram. These very cere-
monies were performed at the time, when Swami Atma
D Viveka Nandji took the Sanyas." (Emphasis supplied)

It is necessary to mention that though this witness was examined
at length, there is no question put as to the performance of
Atma Sradh. This is somewhat significant because this question was
put to only one of the plaintiff's witnesses, Mahesh Dutt Shukla, PW 13
E and he replied that according to the tenets of the 'Sant Mat' it is not
necessary to perform Atma Sradh for becoming a sanyasi.

The evidence of the plaintiff's witnesses show that the Biraja lloma
ceremony is of great importance, and if the Biraja llama was per-
formed by Swami Atmavivekanand at the time of his initiation, it
F is not at all probable that Swami Sarupanand and Swami Atmaviveka-
nand, who were men of great ability and ciTcumspection, should have
performed Biraja lloma ceremony and omitted the essential details,
especially tl1e performance of the Sradh of one's self, that is, Atma
Sradh by Swami Atmavivekanand. If the Prajapathiyesthi or Biraja
lloma ceremonies were performed, then it must necessarily give rise
G to the irresistible inference that Swami Atmavivekanand must have
performed his Atma Sradh before he was initiated as a chela.

We are clearly of the opinion that the appellant Sri Krishna Singh,
impleaded as defendant No. 5, was precluded from contending that
his father Baikunth Singh, who on his initiati'On by Swami Sarupanand
H was baptised as Swami Atmavivekanand, was not a Hindu sanyasi.
On May 29, 1949 he along with his brother brought a suit for parti-
tion, being suit No. 389 of 1949 in the Court of Judicial Officer,
SRI KRISHNA v. MATHURA AHJR (Sen,!.) 691

Chandauli, against the other members of their family. It was alleged A
in the plaint :
"That the father of the plaintiffs has been a man of
religious bent of mind. For that reason he having left the
property of his share in the spurdgi and possession of his
sons, plaintiffs Nos. 2 and 3, more than twenty years ago, left B
residing here and went away. Thereafter he became a
sanyasl." Since then, plaintiffs Nos. 1, 2 and 3 have been
in possession and occupation of the same as of right and
-r also by way of inheritance.
"That on account of the renunciation made by the father
J of the plaintiffs, the plaintiffs have become the principal c
tenants according to kiw and they have been in possession
and occupation of their share up to this day."
(Emphasis supplied)

In the aforesaid suit, the appellant Sri Krishna Singh appeared as
D
PW 1 and in his deposition, Ext. IOI, he stated on oath:
"The bud in dispute is under my tenancy. The name
• of my father stands entered in our share. My father died
two months ago. After his becoming a Sadhu he adopted
'' the name of Atmavivekanand. He h'ls taken sanyas. He
used to lire at Gadwadhar Bang/a Kuti." E
(Emphasis supplied)
In para 6 of his written statement, the appellant while denying
that Swami Sarupanand founded any math at Garwaghat averred :
"Sri Swami Swarupa Nandji was the Guru of Sri Baikunth
Singh, alias Sri Swami Atma Viveka Nandji, hence having
F
regard to his old age and also with a view of honouring him,
his name has been entered in gift deed, dated 8-3-1935. In
J.
fact on the basis of the aforesaid deed of gift, Sri Baikunth
Singh alias Sri Swami Atma Viveka Nandji acquired the
property and has been in exclusive possession thereof." G
In para 7 he states :
"Sri Baikunth Singh, alias Sri Swami Atma Viveka
Nandji was a Grahast. He was Chhattri Hindu by caste.
He never took Sanyas nor did he denounce the worlrl. The
real fact is that when Sri Swarupa Nandji, who was the resi- R
dent of Punjab, arrived at the house of Sri Baikunth Singh,
aforesaid, situate in Mauza Khuruhja Pargana Majhnwar,
692 SUPREME COURT REPORTS U980] 2 s.c.R.

A District Banaras, Sri Baikunth Singh was impressed by him,
and under his influence became religious minded. He called ''
himse1£ as Swalill Atma Viveka Nandji. He believed only
in the worship and Bhakte of his Guru. He considered his
Guru as God. He used to impart this very teaching to his (
disciples, and devotees. He never renounced the Grahast
B Ashram. No body ever gave him Chadar Mahanthi. He
never became the Mahanth of any Math. Sri Sarupa Nandji
was also not the Dasnami. He never took Sanyas."
That appears to be a case set up to defeat the plaintiff's claim. Whell ·~
he was confronted with his admission in the plaint filed in the suit !
C for partition, he disavowed knowledge of the fact of his father
Baikunth Singh having become a sanyasi. This was nothing but a
time serving statement.
In Chandra Kunwar v. Chaudhri Narpat Singh,(') the Judicial
Committee of the Privy Council observed :
D
"The proof of this admission shifts the burden, because,
as against the party making it, as Baron Parke says in
Slatterie v. Pooley : "What a party himself admits to be true
may reasonably be presumed to be so." No doubt, in a
case such as this, where the defendant is not party to the
E deeds and there is therefore no cstoppc~ the party making
the admi&;ion may give evidence to rebut this presumption f>

but unless and until that is satisfactorily done, the fact
admitted must be taken to be established."
It follows that admission of the fact that his father Baikunth Singh
had become a sanyasi, shifted the burden on the appellant to disprove
F that he was a Hindu sanyas;.
There is direct oral evidence of the plaintiff Harsewarumd and of
Iris witnesses PWs 2 to 5, 7 to 10, 14 and particularly that of Swami
Viveksukhanand taken on commission, about the plaintiff's initiation
fulto the ascetic order. All these witnesses have amply proved that
G the particular ceremonies including Prajapathiyesthi and Biraja Homa
required in the 'Sant Mat' fraternity were performed when the plain-
tiff was made a sanyasi. It is amply proved by PWs 1 to 10 and 13
to 15 that Swami Atmavivekanand had not only initiated him as his
chela but also nominated him to be the mahant and that after bis
death and in accordance with his wishes, he was given Chader
H Mahanti on the occasion of the Blumdara of Swami Atmavivekanand.
(!) I.L.R. 29 All. 184.
SRI KRISHNA v. MATHURA AHIR (Sen,!.) 693

The document Ext. 100, prepared by the 'Sant Mat' fraternity on this A
• occasron and the photograph Ext. 121, taken lends assurance to the
testimony of these witnesses that the plaintiff Harsewanand was
installed as the mahant of the math in accordance with the express
' desire of Swami Atmavivekanand.

The learned Civil Judge in his judgment observes : 'The fact of B
Harsewanand being a sanyasi remains undoubted'. His finding that
he was not a Himdu sanyasi was based upon the view that nnder
- Hindu law mere 'renunciation' of the world is not sufficient. Hence,
-~ he holds that a Sudra who renounced the world and became sanyasi
oannot be said to be a Hindu sanyasi, as according to the Hindu
Sastras no Sudra can become a sanyasi. The underlying fallacy lies c
in his over-looking that the question had to be determined not accord-
ing to the orthodox view, but according to the usage or custom ot
the particular sect or fraternity. It is needless to stress that a reli-
gious denomination or institution enjoys complete autonomy in the
matter of laying down the rites and ceremonies which are essential.
We must accordingly hold that the plaintiff was the validly initiated D
chela of Swami Atmavivekanand and upon his demise was duly
installed as the mahant of Garwaghat Math according to the tenets of
his 'Sant Mat' Sampradaya.
•
There re.mains the question whether due to the death of the E
• plaintiff Harsewanand during the pendency of the appeal the suit
1
brought by him abates in its entirety.
It is argued that the original plaintiff, Mathura Ahir, having filed
,the suit primarily to establish his personal right to the office of mahant
which entitled him to possessron of the property in suit, the suit
abated on his death. The cause of action on which the suit was
instituted, it is urged, was personal to the plaintiff, and in order to
establish that he had been duly and properly initiated as a sanyasi
and installed as a mahant, he had to plead and establish all the neces-
sacy facts regarding his capacity to become a sanyasi, his nomination
• by his Guru. and his ultimate election or nomination by the 'Sant Mat'
G
Sampradaya. The submission is that these were facts special to the
original plaintiff, and he having died, respondent No. 1, Harshankara-
nand cannot claim any relief unless and until he also esta-
blishes all these facts in regard to his claim to mahantship. The
original cause of action, it is said, has vanished with the death of the
plaintiff and the respondent No. 1, Harshankaranand had necessarily H
to plead and establish a new set of facts. In substance, he could
not prosecute the cause of action as originally framed and he could
694 SUPREME COURT REPORTS (1980] 2 S.C.R.

A not succeed without materially altering the pleadings and substituting
another cause of action, which could very well form the subject matter
of a separate suit.
It is argued that the nomination of a person as a mahant invests
him wi~h a 'status' and, therefore, capacity to succeed to the office
of mahant is an incident of that status. It is said that the claim to
B mahantship is, th&efore, a personal right which does not survive the
plaintiff; any suit claiming such a status must abate on the death of the
plaintiff. Alternatively, the submission is that if the Court came to
the conclusion that the plaintiff had sued in his capacity as a de facto
mahant, it is obvious that the cause of action would be personal to
him and would certainly not survive the plaintiff. In that event, the
c suit must of necessity abate as a right claimed on the basis of de facto
ownership cannot survive the plaintiff.
x x x x x x
The question whether a suit abates in its entirety or not upon
the death of the plaintiff must necessarily depend on the nature of
D the suit. This is not a class of case to which the maxim, actio
persona/is moritur cum persona applies. The suit that the plaintiff
Harsewanand brought was for possession of the suit house which
belonged to Garwaghat Math, in his capacity as the mahant. On
denial of his title, he pleaded that he was initiated as a chela by his
Guru Swami Atmavivekanand, the then mahant, in 1937 and nominat-
E ed to be his successor and accordingly upon his demise on August 23,
1949, had been duly installed as Mahant of the Math by the •
'Sant Mat' Sampradaya, i.e., by the Mahants and Sanyasis of the
Bhesh and given Chader Mahanti according to the tenets of frater-
nity. I! was alleged that according to the tenets of this particular
sect, anyone, including a Sudra, could be a sanyasi, and further that
F succession to the office of mahant was from guru to chela according
to the custom or usage prevailing in the sect. One of the issues on
which the parties went on trial was whether there was in existence
a math at Garwaghat, and if so, whether the house in suii was an
accretion thereto.
G The High Court agreeing with the learned Munsif has upheld the •
plaintiff's claim. It was held that the house in suit was acquired by
Swami Atmavivekanand from out of the offerings (Bhent) made by
his disciples and, therefore, was not his secular property, but was
an accretion to the Garwaghat Math. It has further been held that
the plaintiff Harsewanand was the validly initiated chela of Swami
II Atmavivekanand and was duly installed as mahant of the math after
his death, by the 'Sant Mat' fraternity according to his wishes. The
'•
defendants have been held to be rank trespassers. The decree under
SRI KRISHNA v. MATHURA AHIR (Sen, J.),, , 695

appeal crystallizes the rights of the parties. The cause of action did A
not die with the plaintiff. In the circumstances, the respondent No. 1,
Harshankaranand, who now claims to be the mahant, ha! the right
to contest the appeal as representing the math, being the de facto
mabant, for preservation of its properties,
x x x x x x.
According to the Hindu jurisprudence, a religious instituti'On such
as 'a math is treated as a juristic entity with a legal personality capable
of holding and acquiring property. _It, therefore, follows that the
suit instituted by the mahant for the time being, on its behalf, is
properly constituted and cannot abate under the provisions of Order 22
of the Code of Civil Procedure, on the death of the mahant pending C'
the decision of the suit or appeal, as the real party to the suit is the
institution. The owneiShip is in the institution or the idol. From its
very nature a math or an idol can act and assert its rights only
through human agency known as a mahant, shebait or dharmakarta or
sometimes known as trustee.
Jenkins C.J. in Babajirao v. Laxmandas(') defines the true notion D·
of a 'math' in the following terms :
• "A math, like an idol, iS in Hindu Law a judicial person
capable of acquiring, holding and vindicating legal rights,
though of necessity it can only act in relation to those rights
through the medium of some human agency."
E
• _It follows that merely because the mahant for the time being dies and
is succeeded by another mahant, the suit does not abate.
The correctness of the decision in Ramswarup Das v. Rameshwar
~ ..
Das( 2 ) is thus open to question. It does not stand to reason that
when a sui! is brought for possessi'On by a mahant of an astlza/ or Math,
or by a shebait of a debottar property, and the defendant is adjudged
to be a trespasser, such a suit should abate with the death of the
mahant or ~hebait. This would imply that after a long drawn litiga-
tion, a" here, the new mahant or shebait has to be relegated to a
separate sui·t. _The definition of legal representative as contained in
• s. 2 ( 11) of the Code reads :
•

-
"(1 l). -"legal representative" means a person who in Jaw
represents the estate of a deceased person, and' includes any
pe15on who intermeddles with the estate of the deceased
• and where a party sues or is sued in a representative charac-
ter the person on whom the estate devolves on the death of
the party so suing or sued."
.,... (l) I.LR. 28 Bern. 215 & 223•
(2) J,L.R. 28 Pat. 989.
7-9JSCI/80
I
I
696 SUPREME COURT REPORTS (1980] 2 S.C.R.

.. A The general rule is that all rights of action and all demands
Whatsoever, existing in. favour of or against a person at the time Of
his death survive to or against his legal representative. In Muham-
mad Hussain v. Khushalo(') Edge C.J., while delivering the judgment
of the Full Bench, observed:

Il
"I h:ive always understood the law to be that in those •
cases in which an action woulrl abate upon the death of the
plaintiff before •judgment, ·tb action would not abate if
final judgment had been obtained before the death of the
plaintiff, in which case the benefit of the judgment would go
to hi·s -legal representative."
c That, in ·our opinion, lays down the correct test.
In the instant case, the appellant himself has, of course, without
prejudice to his right to challenge the right of the original plaintiff,
Harsewanand, to bring the suit, substituted the respondent No. 1,
Harshankaranand,. as his heir and legal representati<ve, while disputing_
rJs claim that he had been appointed as the mahant, as he felt that
D
the appeal could not proceed without substitution of his name. In
his reply, the respondent N~. l, Harshankaranand alleges that after
the demise of mahant Harsewanand he was duly instilled as thei
ma:hant of Garwaghat Math by the 'Sant Mat' fraternity. He further
asserts that he was in possession and enjoyment of the math and
E its properties. The ·fact that he is in management and control of the
math properties is not in dispute. The issue as to whether he was so
installed or not or whether he has any right to the office of a mahant,
cannot evidently be decided in the appeal, but nevertheless, he has
a right to be substituted in place of the deceased Mahant Harsewanand
as he is a legaJ representative within the meaning of s. 2(11), as mi ~-.
/
F indubitably is intermeddling with the estate. He has, therefore, the
right to come in and prosecute the appeal on behalf of the math.
In the result, the appeal must fail and is dismissed with costs.

S.R. Appeal dismissed •
G •

-
•
,_.

•
.... __ ,.)

(I) !LR 9 All. 131.