Sir George Lowndes.-

The question in this appeal is as to the right to appoint a successor to one Kan Das, the bairagi mahant of a mutt in Hardwar, who died in 1923 leaving no chela and having made no appointment to the gadi. On his death the appellant took possession of the mutt, claiming to be entitled thereto as the mahant of a neighbouring institution at Sainwal from which he asserts the Hardwar mutt was founded. The moveable property was locked up in a room by the police. The respondents then came forward with a rival claim as representing another mutt at Koh Kerana. The matter was investigated by the Sub Divisional Magistrate, who held that the appellant had made out a prima facie title to the succession, but ordered the moveables to be kept under lock and seal for a further period of six weeks to enable the respondents to take proceedings in the civil Court, failing which the property was to be made over to the appellant, who was left in possession of the immovable property valued at between two and three lakhs of rupees. The respondents thereupon filed the suit out of which this appeal arises in the Court of the Subordinate Judge of Saharanpur claiming a declaration of their title to and possession of the mutt and property, upon the allegation that respondent 1 as the Mahant of Koh Kerana had the right of appointment to Hardwar, and that he had appointed his own chela, respondent 2, as the successor of the deceased Kan Das.

It is admitted by counsel for the respondents that under these circumstances the burden was upon them to establish the right they claimed, and their Lordships have no doubt that this is so. Reliance was placed in the plaint upon a deed of appointment, executed in the interval between the Magistrate's order above referred to and the institution of the suit, by which a number of persons describing themselves as "mahants, santans and jogis” purported to appoint respondent 2 to the vacant gadi with the consent of respondent 1, but no reliance has been placed on this document before their Lordships. It seems, indeed, to be inconsistent with the contention to which the respondents now pin their faith, namely that the right of appointment lies solely with the Mahant of Koh Kerana.

It is common ground that the Hardwar gadi was established in or about the year 1818, and that the first mahant was one Ottam Das, to whom Kan Das was according to one account the third, and according to another the fourth successor. Ottam Das was the chela of Godha Das who was the chela of Pir Sukol, the then Mahant of Koh Kerana, a mutt which though itself the offshoot of another and older mutt at Tila was an institution of considerable antiquity.

In his preliminary examination by the trial Judge, respondent 2 admitted that if the mahant of a subordinate gadi dies without leaving a chela, the "sardar gadi” (i. e., the superior institution) has power to appoint a mahant to the subordinate gadi or to manage in himself. He also admitted that :

"if any other gadi sends its disciple and establishes an "asthan” (i. e., an institution of this nature) at any place, and the disciple dies without leaving a disciple, the mahant who sent his disciple and established the asthan shall be entitled to manage that asthan or to appoint any person thereto."

These statements were re-affirmed by respondent 2 in his subsequent deposition before the Court.

It is clear therefore that what the respondents had to prove was that the Hardwar mutt was the immediate offshoot of Koh Kerana, and the real question in the case is whether Godha Das, whose chela was the first Mahant of Hardwar, was himself a mahant at Sainwal, and so intermediate between Koh Kerana and Hardwar.

The respondents alleged in their plaint, and it has been their case before this Board, that Sainwal is not a gadi at all, but is merely a subordinate "kotha,” i. e., the granary, or possibly the treasury of Koh Kerana. The Subordinate Judge, before whom the suit was tried, in a careful judgment, ca