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High Court Of Madhya Pradesh
M. L. Malik, J.
JAGATGURU SHANKERACHARYA JYOTISHPEETH SHRI SWAMI SHANTANAND SARASWATI ADHISHWAR
Versus
SWAMI SWARUPANAND SARASWATI
Decided On : Sep 28,1976
The question is whether on facts and circumstances as these, the Civil suit should be transferred to some Court at Allahabad. The first and foremost consideration for transfer of the case to Allahabad is the fact that the main seat of the Jyotish Peeth is at Joshi Math, Chamoli, and it is the normal rule that the law of the State would govern the trust even though any part of the trust property whether large or small, is situate outside the State. AIR 1959 SC 1002 and AIR 1963 SC 853 relied on. [Para 14
Jyotish Peeth in the present case has neither the principal office in the State of Madhya Pradesh nor the principal place of business. Whenever a question of administration of the trust arises, the sites of the trust ought to govern the jurisdiction of the Court. The fact that part of the trust properly is situate in the State of Madhya Pradesh and part in the State of Uttar Pradesh would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Ordinance of Uttar Pradesh. 1968 JLJ 891 and AIR 1968 SC 422 referred to.
The second aspect that ought to weigh is that there was already a suit pending in the Court at Allahabad. The cause of action for the civil suit at Allahabad and the one filed at Seoni, in Madhya Pradesh, is the same, and if for one the forum chosen is Court at Allahabad, the forum for the other should not be permitted to be Court at Seoni. [Para 18
The third aspect for transfer of the suit to Allahabad is the balance of convenience. As stated above, the non-applicant No. 1 was a resident of Uttar Pradesh to oppose the grant of succession certificate or to obtain consent of the Advocate General for a suit under section 92, CPC. He did not then disclose that his permanent abode was somewhere in Madhya Pradesh. At the time he intervened in the Supreme Court, he gave himself out to be a resident of Delhi. If was convenient then to be at Allahabad or Benaras, it should be convenient all the same now to be there to prosecute this suit of he professes to be a Mathadhish, he should be at the principal seat. The property he is concerned with is ten times more in Uttar Pradesh. The plaintiff has no doubt a right to choose his forum but if the choice has been done with the malafide object of harassing the defendants, that should not be permitted. AIR 1958 Kerala 82 and AIR 1940 Nag. 145 relied. [Para 21
Most of the witnesses would be from Uttar Pradesh to prove the custom governing succession to the office of Shankaracharya and to prove his installation ceremonies. Why whittle down their convenience simply because commissions to examine them could be issued? There examination before the Court serves better purpose. Lot of expense would be saved to the parties. The non-applicant is represented by a counsel from Allahabad. [Para 22
Under these circumstances, the case transferred from Seoni to Allahabad. [Para 23
(2) Civil P.C., 1908 - O. 22, R. 10 and S. 2 (ii) - successor to trusteeship-is legal representative - governed by O. 22, R. 11.
Successor to trusteeship and trust property is legal representative within the meaning of section 2 (ii) of the Code of Civil Procedure. 34 MPLC 145 relied on.
It is now well settled that the successor applying for substitution would be governed by O. 22, R. 10. [Para 17
(3) Civil P.C., 1908 - O. 33, R 1 and O. 22, R. 3 - death of pauper during pendency of proceeding for pauperisurn - effect - rights of the legal representatives.
The application to sue in forma pauperis is itself treated as a suit except that the privilege of non-payment of Court-fees is personal to the pauper. On his death, the legal representative can continue the suit, but has to pay Court-fees in case he is not a pauper within the meaning of the Code. But if he is also a pauper, he can claim the same privilege as was given to the deceased plaintiff. AIR 1962 SC 941, AIR 1975 Bom. 5 and 33 MPLC 320 relied on. [Para 20
(4) forum-is choice of plaintiff - unless intention mala fide the choice will be respected.
The plaintiff has no doubt a right to choose the forum, but if the choice has been done with malafide object of harassing the defendants, that should not be permitted. AIR 1958 Kerala 82 and AIR 1940 Nag. 145 relied on. [Para 21
(5) Trust-dispute about-law-governing-is the law of the State where the principal seat is and major part of the property is situate. [Para 15
( 1. ) THIS is an application under section 22 read with section 23 of the Code of Civil Procedure for transfer of Civil Suit No. 1-A of 1974 from the Court of District Judge, Seoni, in Madhya Pradesh, to any Court of competent jurisdiction at Allahabad in Uttar Pradesh.
( 2. ) THE suit relates to a Jyotish Peeth, its management and its property. The plaintiff (non-applicant No. 1) claims to be a lawfully installed Shankara charya as a successor to Swami Krishna Bodhashram. The applicant, who is managing the affairs since 1953, the plaintiff says, could not be lawfully appointed as Shankaracharya because he was not a man of requisite learning; that his succession under the alleged will of late Shankaracharya Swami brahmanand was invalid; that Swami Krishna Bodhashram was the person selected by the Pandits of the Vidwat Parishad to succeed to the Office on the death of Swami Brahmanand and on his death the plaintiff succeeds. The plaintiff claims in the suit declaration of his title to the Office of Shankaracharya, possession of the property as per Schedule a of the plaint and an injunction restraining the applicant (defendant No. 1) from interfering with his management. The defendants 2 to 4 are the persons who were shown in the alleged will of Swami Brahmanand to be his disciples in addition to the defendant No. 1, for succession to the Office of Shankaracharya in the order of preference.
( 3. ) THOUGH the dispute as to succession did not reach the Supreme Court as a direct issue, the dispute reached their Lordships in a different context. On the death of Swami Brahmanand on 20th May, 1953, his will was published on the 8th of June, 1953. Swami Brahmanand had nominated, as aforesaid, a panel of four persons in order of preference to succeed him as head of the jyotish Peeth. The first choice was for Swami Shantanand Saraswati (the applicant here ). On June 12th, the applicant was installed as Shankaracharya. He took over possession and management of the Math properties.
( 4. ) A section of the worshippers, who did not approve of the applicants installation, selected on 25th June, 1953, Swami Krishna Bodhashram for the office of Shankaracharya and in order to oust the applicant from the Office, sought leave of the Advocate General for a suit under section 92 of the Code of Civil Procedure. The plaintiff-non-applicant No. 1 had joined Swami parmatmanand and others in their application for consent of the Advocate General, but later when the suit came to be filed, he chose not to become a party. The suit was ultimately filed by Swami Parmatmanand and others in January, 1954. They supported the claim of Swami Krishna Bodhashram to the Office and prayed that Swami Shantanand Saraswati be removed and in his place Swami krishna Bodhashram be appointed. The suit was dismissed. An appeal before the High Court of Allahabad failed and the matter reached the Supreme court in Civil Appeal No. 1589 (N) of 1973. Their Lordships of the Supreme court dismissed the appeal with the following observations: See Swami parmatmanand Saraswati and another v. Ramji Tripathi and another, AIR 1974 SC 2141.
"the Trial Court, after reading the allegations in the plaint and after looking into the entire evidence in the case, came to the conclusion that the suit was primarily one for declaration that Krishna Bodhashram was duly installed as the Shankaracharya of the math on June 25, 1953 and that respondent No. 1 had no right to be nominated as the head of the Math by Brahmanand as he did not possess the requisite qualifications and that his possession of the trust property was only in the capacity of a trustee de son tort, and so he must be removed from the headship of the Math. The High Court saw no reason to differ from the finding. We would be slow to disturb a finding of this nature especially when we see that the allegations in the plaint are reasonably susceptible of being so read. We think that the purpose of the suit was to settle the controver
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