Judgement

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Appeal (No. 134 of 1927) from a decree of the High Court (February 7, 1925) reversing a decree of the Subordinate Judge of Midnapur.

The suit was brought by the first respondent for a declaration that he was gaddinishin mahant of a math in the Midnapur district, and for possession of the properties appertaining to the math. The math included a greater asthal and five lesser, or subordinate, asthals. The plaintiff claimed as chief chela of a mahant who had died on August 27, 1918, and under an appointment contained in his will executed in 1908. The appellant, who was in possession as gaddinishin mahant, claimed that under- two wills executed on August 2, 1918, by the mahant above referred to, he was gaddinishin mahant, and that the plaintiff was mahant of one of the lesser asthals only, and entitled only to the property thereto appertaining and certain property appertaining to another lesser asthal. The wills of 1918 did not in terms revoke the will of 1908.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit.

The High Court reversed the decision and decreed the suit. The learned judges (Walmsley and Page JJ.) held that the wills of 1918 were inoperative according to Hindu law, since they purported to partition the math. The judgment is reported at I. L. R. 52 C. 748.

1928. Nov. 16, 19. Dunne K.C. and Hyam for the appellant.

De Gruyther K.C. and Wallach for the first respondent.

[Reference was made to Mahant Ramanooj Doss v. Mahant Debraj Doss (( 1839) 6 S. D. A. (Beng.) 262.); Greedharee Doss v. Nundokissore Doss (( 1867) 11 Moo. I. A. 445.) ; Ram Parkash Das v. Anand Das (( 1916) L. R. 43 I. A. 73.); Sethuramaswamiar v. Meruswamiar (( 1917) L. R. 45 I. A. 1, 9.); Adams v. Southerden ([ 1925] P. 177.); Maynes Hindu Law, paras. 439, 440.]

Dec. 17. The judgment of their Lordships was delivered by

LORD PHILLIMORE. In the district of Midnapur there is a math or charitable endowment of ancient foundation, and this appeal concerns a dispute as to the title to the office and emoluments of the mahant of this math.

Nothing is known of its earlier history. There is a deed of gift in the year 1841 to one Lachhman being then mahant. And he on September 11, 1878, appointed Bharat Das, his disciple, to be his successor in the office. The document is in the form of a letter attested by various witnesses and addressed to the appointee, and the appointment is per verba de presenti; but the document is described as a will and was registered as such, and the appointment was only to operate upon the death of the appointor. In this document Lachhman describes himself as the gaddinishin mahant of the well-known akhra named bara asthal, wherein two known idols, Raghunathjiu and Gopinathjiu and other idols have been installed from the time of his predecessors and to which certain other asthals described in the schedule, and also in his possession, are said to be subordinate, of all of which he is owner and manager. Five asthals or houses are mentioned in the schedule.

Lachhman died and was succeeded by Bharat, and Bharat in turn died on August 27, 1918. He had on February 24, 1908, executed an appointment of his successor. The document is in the same form as that by which he himself was appointed, and must be deemed to be a will. In it he describes himself as

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gaddinishin chela of the mahant Lachhman, and recites his own appointment, and makes Gobinda Ramanuj, the plaintiff in the present suit and a respondent in this appeal, chief chela and malik and gaddinishin mahant like himself. To this document a schedule is appended in the same form as the schedule to the previous document containing the names and descriptions of the five minor asthals.

Ten years later, in 1918, Bharat executed two new wills. Both are date