Judgment

PATHAK, J:- This appeal arises on a certificate under sub-cl. (b) clause (1) of Article 133 of the Constitution granted by the Allahabad High Court against its judgment and decree dated April 21, 1969 disposing of appeals out of a suit for declaration and possession.

2. The plaintiffs filed a suit claiming that the property in dispute belonged to the Math Sauna or the deity Sri Thakur Gokarneshwar Mahadeo Ji installed in the Math Sauna temple, and that Mahant Sadashiva Yati was in possession as Mahant and Sarbarakar. It was claimed that in the event of Mahant Sadashiva Yati being found out of possession a decree for possession should be made. Sadashiv Yati pleaded that on the death of Mahant Shivshanker Yati he was elected Mahant of Math Sauna and was therefore, entitled as Sarbarakar to all the properties recorded in the name of the deity Mahadeo Ji or in the name of Mahant Shivshanker Yati. These properties included properties in village, Amauli. He asserted that Shivshanker Yati possessed no personal property. The suit was contested by the first defendant, Kedar Nath Chaubey, also referred to as Uma Shankar Yati. He alleged that Mahant Shivshanker Yati owned personal properties which includsed the properties in village Amauli, that he was the chela of Mahant Shivshanker Yati and the Amauli properties had passed to him under a will executed by the Mahant. We are concerned in this appeal solely with the Amauli properties.

3. Math Sauna is an old Math situated in the village of that name in Tehsil Saidpur in the district of Ghazipur. One of the earliest Mahants of the Math Mahant Gokaran Yati, raised a temple in the premises of the Math and installed a deity acclaimed by the name of "Gokarneshwar Mahadeo". On his death he was succeeded by Mahant Shivbaran Yati, who executed a waqf deed on November 12, 1892 dedicating various properties to the deity with the intent that arrangements for bhog, deepdan and other expenses be met from them. The surplus, the deed directed, was to be employed for acquiring further property in the name of the deity and was not to be applied by the Sarbarakar to his personal use.

4. The learned Civil Judge decreed the suit but included a finding in his Judgment that Sadashiv Yati was not a regularly constituted Mahant of Math Sauna and Sarbarakar of the deity. Two appeals were filed in the High Court. First Appeal No. 80 of 1964 was filed by Kedar Nath Chaubey ? Uma Shanker Yati against the declaration that the Amauli properties were owned by Math Sauna or the deity and that Sadashiv Yati was in possession thereof as Mahant and Sarbarakar. The other appeal, First Appeal No. 270 of 1965 was filed by the plaintiffs for the relief that Sadashiv Yati was a properly constituted Mahant of Math Sauna and Sarbarakar of the deity. The High Court allowed both the appeals by its judgment and decree dated April 21, 1969. It held that the Amauli properties had been purchased by Shivshanker Yati in 1921 from the personal and separate funds inherited by him from his predecessor Shivpher Yati, and that the Amauli properties must therefore be regarded as his personal and separate properties and they did not belong to the Math or the deity. The present appeal is directed against that part of the judgment and decree of the High Court.

5. It is admitted between the parties that the Amauli properties were purchased by Mahant Shivshankar Yati for Rs. 40,000/- forming part of a fund left behind by his predecessor Mahant Shivpher Yati. The point for decision is whether the fund was the personal properly of Mahant Shivpher Yati, and if so, whether it devolved on Mahant Shivshanker Yati.

6. The mahants and members of Math Sauna belonged to the Dashnami Sanyasi sect. The material on the record establishes that they could own and possess personal property. They included sanyasis who had formerly been married men and householders, men who had passed through the grihastha ashram. Some of them continued to possess and even to ac