TMI Blog1925 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... j Das, on the strength of a will or a deed of nomination made in 1878. There was, so far as we know, no dispute about Bharat's succession. 5. In 1908 Bharat was growing old, and he then made a will by which he appointed the plaintiff as his principal chela and successor. He lived, however, for ten years longer, and a few days before his death, he made two documents, one in favour of the plaintiff, the other in favour of the other Gobinda, or Bara Gobinda as he is called by the former he appointed Chhota Gobinda to be paricharak mohant of Shyamchandpur, while by the latter he appointed Bara-Gobinda to be gadinashin mohant like myself. 6. On the death of Bharab, Bara Gobinda applied to the Collector under the Registration Act for the entry of his name in place of Bharati's in regard to some of the property belonging to the muth. Chhota Gobinda objected, but afterwards on 15th March 1325 the two executed mutual ekrarnamas, which for the time composed their differences. A year later on 18th February 1920, Bara Gobinda died, leaving a will by which he appointed the first defendant, Ram Charan to be his principal chela and successor, and the plaintiff's case is that R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Plaintiff says that it could not be revoked and that under it he attained a position from which he acquired the right of succession, that is to say, that the will of 1908 nominated him as chief chela and that he became such, and is consequently entitled to succeed to the mohantship. 12. To take the latter point first: the plaintiff is at this disadvantage that he cannot throw much right upon the rule of succession in this muth. The earliest evidence on this point is the deed executed by Lachman in favour of Bharat in 1878: but that document says nothing about Bharat being or, becoming chief chela; he is appointed to be mohant as the better of two mantra sisyas. As Lachman was mohant in the year 1841 oral evidence as to the practice of the muth before Bharat succeeded Lachman must in the nature of things be valueless. 13. Bhatat's deeds and Bara Gobinda's deed are the only other pieces of evidence to be considered. In the 1908 document Bharat said: You Sri Gobinda Ramanju Das Rusuiya (cook) are pre-emient among my chelas...Having full confidence in you .... I do gladly and out of my free will appoint you as the chief chela according to the rules and customs laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the document of 1908 was nothing but a Will: it is called Will, and is was registered as a Will and its terms are the terms of a Will, for i says: By means of this Will I declare that, the properties .... shall remain in my possession and contract during my life-time .... On my death, etc. As a Will it could be revoked, and I do not think that the clause appointing Chhota Gobinda to be chief chela could change the character of the document as a whole, and take from its maker the power of revocation. 17. My view therefore is that the argument , which the plaintiff bases on the Will of 1908 must both be rejected. It was a Will and capable of being revoked. Assuming that is gave the plaintiff the status of chief chela or recognized that he had that status it is not shown that as chief chela he had an unqualified right to succeed to the office of gadinashin mohant. 18. I should add here, that no arguments were addressed to us on the defendant's attack upon the Will as made under influence, or upon the alleged cancellation of the Will. The findings of the learned Subordinate Judge on those points therefore stand unchallenged. 19. The next argument is that the Court be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for respondent put forward another argument, namely, that there was no division of the office because Bharat only arranged for one man to discharge one class of duties and the other another class. Neither explanation seems to me at all satisfactory. There are two mohants where there was one, and the mohant of Navaganj has to be content to let the mohant of Shyamchandpur hold a considerable amount of the land belonging to the foundation. Such a result must be equivalent to partition of the office and of the property, and is, I think, contrary to Hindu Law. In the case of Sethuramaswamiar v. Meraswamiar A.I.R. 1917 P.C. 190, their Lordships of the Judicial Committee said: The headship of a muth is not a matter of partition 21. I think, therefore, that on this part of the case the plaintiffs contention is correct, namely, that Bharat did attempt to make a partition of the office and of the property, and that to that extent at least his disposition of 1918 is void. The question then arises as to the result that follows from this view. 22. The two documents of 1918 were executed on the same day and they refer to one another, and they must be regarded as constituting one Will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact pradhan chela. He continued to be a chela for he is called such in the 1918 documents, and it is rather significant that those document'; do not make use of the expression regarding either Gobinda, although Bara Gobinda in his Will describes Ram Charan as pradhan chela. The circumstances warrant the view that Chhota Gobinda was the pradhan chela at the time of Bharat's death, and in the absence of any valid disposition by the late mohant he is entitled to succeeded to the office of mohant with the custody of the property. 25. My conclusion, therefore, is that the appeal should be allowed and the suit decreed with costs in both Courts. Let a decree be drawn up in terms of the first four prayers in the plaint. The Defendant No. 1 alone will be liable for the costs of the plaintiff. Page, J. 26. I agree. As I apprehend the matter, the determination of this appellant mainly depends upon whether Bara Gobinda was validly appointed by Bharat the gadinashin mohant of the Nayaganj Asthal. It was conceded before us that the Will of 1908 and the two documents which comprised the Will of 1918 were duly executed, and that the terms thereof expressed the deliberate inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is instrument Bharat clearly and deliberately attempted to effect a partition of the office of mahant, and of the property dedicated to the muth at Nayaganj. 29. Babu Mohendra Nath Roy, on behalf of the first respondent, on the assumption that the Will of 1918 operated in the manner which I have stated admitted that pro tanto the Will was void and inoperative, but he contended that the proper course for the Court to adopt, was to treat the appointment of Bara Gobinda as mohant of Nayaganj as valid, and to expunge the offending provisions of the Will. In my opinion, the Court would not be justified in treating the provisions of the Will in the manner suggested by the learned pleader for the respondent: for the result would be to deprive the appellant) of any right to succeed Bharat as mohant. So to hold, in my judgment, would be to act in opposition to the intention of Bharat. I have no hesitation upon the evidence in holding that Bharat was not minded wholly to oust the appellant from the mohantee. It is not an unreasonable inference to draw from the evidence that the importunities-and it may be the machinations of Bara Gobinda and Shyamal Das, the uncle of the first respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the appellant. Further in any event, the appellant did not acquiesce in the nomination of the first respondent by Bara Gobinda; on the contrary, he has consistently challenged its validity. In my opinion, there is no substance In the plea of estoppel, and it cannot be sustained. For these reasons, I am of opinion that Bara Gobinda was not duly nominated mohant by Bharat, and that the nomination of the first respondent by Bara Gobinda is void and of no effect. 32. In these circumstances, it became necessary to consider, whether the plaintiff has made out his claim to be the gadi nashin mohant of the Nayaganj Asthal. He cases his claim upon two grounds: (1) that he was duly nominated by Bharat under the Will of 1908; (2) that he was the senior chela of Bharat. As regards the first ground, the respondent contends, that the Will of 1908 was revoked by the Will of 1918. It is, I think, clear that the provisions of the Will of 1918 are so inconsistent with those of the Will of 1908, that it roust be taken that Bharat intended that the two Wills should not stand together, and that the nomination to the mohantee at Nayaganj and at Syamchandpur should supersede the nomina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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