JUDGMENT B. Mukerji, J. - This is a Special Appeal against the decision of a learned single Judge of this Court given while exercising original testamentary jurisdiction. 2. On the 28th of February, 1949 one Mahant Parmarth Giri made a Will whereby he purported, among others, to do two things: (1) appoint a successor - a chela of his and (2) make a settlement of the properties attached to the Math of which Parmarth Giri was admittedly a Mahant. By the aforesaid Will Mahant Parmarth Giri also appointed the appellant an executor. 3. On the 13th April, 1949, Ram Chandra Upasani made an application for the grant of a Probate to the Will of Mahant Parmarth Giri, dated the 28th February 1951. Certain objections were raised to the grant by the respondents. There were four objectors to begin with but ultimately only three kept on the scene till the end. Evidence was led on behalf of the petitioner as also on behalf of objectors 3 and 4. This evidence related to the question, as to whether or not Mahant Parmarth Giri had executed the alleged document on the 28th February, 1949, and further, whether Parmarth Giri was of sound disposing mind at the time when he executed the document. No controversy appears to have been raised in regard to Mahant Parmarth Giri possessing the power to nominate his successor and as such to vest in him, in a sense, the properties appertaining to the Math. 4. Among the issues which had been raised, the learned single Judge took up for consideration one issue only as a preliminary issue, and the issue that he took up for consideration was whether the document dated 28th Feb., 1949 which purported to have been executed as a Will could be accepted as a will under the law. The contention that was raised before the learned single Judge was that the document could not be a Will, inasmuch as, the properties in respect of which the testator expressed his "intention" were not his properties. For the above contention reliance was placed on the definition of the word "Will" in the Indian Succession Act. "Will" has been defined by Sec. 2(h) of the Indian Succession Act in these words. For the above contention reliance was placed on the definition of the word "Will" in the Indian Succession Act. "Will" has been defined by Sec. 2(h) of the Indian Succession Act in these words. "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death." 5. The controversy that raged before the learned single Judge centred round the narrow question, whether the properties in respect of which Mahant Parmarth Giri made a declaration of his intention could be called the property of the Mahant so as to enable him to make a disposition of the character that he made under the Will. 6. The learned single Judge held the view that unless the property in respect of which the testator made a declaration of his intention which was to take effect after his death, belonged to the testator, a document containing a declaration in respect of such a property could not be a Will and therefore no Probate or Letters of Administration with the Will annexed could be granted in respect of such a document. 7. The question that falls for our determination is whether the property in respect of which the testator, Mahant Parmarth Giri, expressed his declaration of intention, which was to take effect after his death by the document of the 28th February, 1949, could be deemed to be his property. The question naturally arises whether the property which was Math property could for the purposes of making a Will by the Mathadhipati be taken to be property of the Mathadhipati. 8. There was no contest that Mahant Parmarth Giri was the head of the Math, popularly known as Surajkund Math of Banaras and to which, among other properties, was attached the Siddhi Estate. The Math was an ancient and a well known Nihang Dashnami Swatantra Sanyasi Math. There appeared no doubt, for no one raised any such point on which any such doubt could arise, that the Mahant of the Math had full control over the property in regard to its management including such alienations and dispositions as the law allowed. There was also no doubt that the Mahant for the time being, in office, had the right under custom to nominate his successor. There was also no doubt that the Mahant for the time being, in office, had the right under custom to nominate his successor. It is interesting to note here that Mahant Parmarth Giri by his disposition of the 28th February 1949, whether it was to be taken as a will or any other kind of disposition, appointed a Board of Trustees, and the reason that he indicated in the aforementioned document was that the Siddhi Estate was a great religious institution and for its good administration it appeared proper to him to form a Board of Trustees so that the administration of the Siddhi Estate could be carried on properly. 9. The learned Single Judge took the view that since a Mahant of Math had no power of disposal over the property of the Math therefore such property could, in no sense, be described as the Mahant's property. The position of a Mahant or Mathadhipati qua Math property has been authoritatively laid down by their Lordships of the Supreme Court in the Commissioner of Hindu Religious Endowment v. Sri Lakshmindra Thirtha Swamiar, 1954 SCR 1005 (at p. 1018) : 1954 AIR SC 282 wherein their Lordships said: - "As regards property rights of a Mathadhipati it may not be possible to say in view of the pronouncements of the Judicial Committee which have been accepted as good law in this country ever since 1921, that a Mathadhipati holds the Math property as a life tenant or that his position is similar to that of a Hindu widow in respect of her husband's estate or that of an English Bishop holding a benefice. He is certainly not a trustee in the strict sense. He may be, as the Privy Council says, a Manager or custodian of the institution, who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be right to describe Mahantship as a mere office. He is certainly not a trustee in the strict sense. He may be, as the Privy Council says, a Manager or custodian of the institution, who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be right to describe Mahantship as a mere office. A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebaitship in the debutter property." Their Lordships further emphasised the idea in the following words - "Thus in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowment attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenure, in respect of endowed properties and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right (the italic is ours). 10. In the aforementioned case their Lordships pointed out that the mere fact that the rights of a Mahant in respect of transfers and in respect of encumbering the property of the Math was restricted, if not severely restricted, even so the Mahant in view of the observations of their Lordships quoted above had an interest in the property relating to the endowment, and this interest was his property and if it was his property then there appeared no difficulty in holding that the disposition that the Mahant made in the instant case was in respect of his property. The learned Single Judge had not the advantage of having before him the decision of the Supreme Court in Commissioner of Hindu Religious Endowment v. Sri Lakshmindra Thirtha Swamiar, 1954 SCR 1005 (at p. 1018) : 1954 AIR SC 282, because at the time when the learned Single Judge decided the case the decision of the Supreme Court had not come. 11. 11. As we noticed earlier the only reason why the learned Single Judge refused relief to the appellant was that the document in respect of which Probate was sought was not a Will and the basis for holding the document not to be a Will was that the property in respect of which the disposition could operate could not be deemed to be the property of the Mahant. For the reasons indicated above the view of the learned Single Judge could not be sustained, for it must be held that the document which purported to be the Will of Mahant Parmarth Giri dated the 28th February 1949 could not fail as a Will on the ground that it did not confirm to the definition of "Will" as contained in Sec. 2(h) of the Indian Succession Act. Whether the Will failed on some other ground or not we do not determine, for the learned Single Judge did not decide any of those questions. 12. The result is that we allow this appeal by setting aside the order of the learned Single Judge. This case would have to go back again to a learned Single Judge exercising original testamentary jurisdiction for the determination of the questions whether or not a Probate or Letters of Administration with the Will annexed could be granted to the appellant who was a petitioner for such a grant to this Court and we direct accordingly. 13. Costs of this appeal ,would be costs in the cause.