Judgement MITTER, J. : -Bounded by the river Ganges on the east, in the locality named Tripura Bhairavi of the studded city of Benaras there stands a math popularly known as Uttam Giri s Math, the origin of which is lost in antiquity. For well over a century this Math has been a sanctuary of a spiritual brotherhood of Nihang Dasnami Sanyasis. Claim is laid that they belong to one of the ten orders of Sanyasis founded by the chelas of the four disciples of the famous philosopher, Sankaracharya. Starting probably without any nucleus of endowed immovable property, the heads of the Math appear to have, prospered enormously in matters material and temporal. Successive heads of the Math or Mahants as they were commonly known, seem to have been more keen about the acquisition of wealth and preservation of properties than about the furtherance of the spiritual benefit of the brotherhood. Gifts in the shape of endowments seldom came their way but the Mahants who uniformly pursued a money lending business also styled as a banking business in some of the documents, went on amassing wealth and property treating themselves as full owners thereof and directing their successors almost invariably nominated by their wills, to treat the property in the same way as they themselves were doing but paying scant regard to the cause of the brotherhood or the pursuit of any charitable purposes. One Mayanand Giri became the Mahant in 1904 and it is his acts and conduct which sparked off this litigation nearly forty years ago. The immediate cause of the legal proceedings was his marriage which led the plaintiff, Purushottamanand Giri, to file the suit in the court of the Subordinate Judge of Benaras claiming a declaration that by his marriage, the defendant No. 1, Mayanand Giri, had lost his right to continue as Mahant and that the plaintiff as his nearest collateral should, according to the custom of Nihang Dasnami Sanyasis, be put in occupation and possession of the Math and the properties appertaining thereto. The plaintiff also challenged a number of alienations impleading no less than forty-five persons as defendants and claiming that the transfers made by defendant No. 1 were invalid and not binding on the Mahant of the Math. The suit was contested not only by Mayanand Giri but also by a number of the transferees. The defences raised were many and various. The suit was contested not only by Mayanand Giri but also by a number of the transferees. The defences raised were many and various. The first defendant pleaded inter alia that the plaintiff was not his nearest collateral, that there did not exist a Math with the customs and usages alleged in the plaint and that all the properties scheduled in the plaint were not the subject-matter of any endowment. 2. The case of the transferees was that most of the properties were acquired by successive Mahants starting from Chaitanya Giri by the practice of a money lending business. It was said that a banking firm styled as Uttam Giri Shivdutt Giri was started by his successors and it was this business which was pursued by the Mahants that gave rise to the wealth accumulated in the Math. The common defence of all the transferee defendants who contested the suit was that Mayanand Giri was the absolute owner of the properties alienated and that they themselves were bona fide transferees for valuable consideration and as such the transactions entered into with them by Mayanand Giri could not be challenged. The suit was dismissed as against a large number of defendants who were found to he dead at the time of its institution or because they were not properly brought on the record in place of the origina1 defendants. 3. The Subordinate Judge after a protracted hearing came to the conclusion that the ancient documents on the record, coupled with the other evidence, established the existence of an ancient Math, that the Mahants from the time of Gangot Gir had been carrying on a money lending business, that an ancestor of Gangot Gir by name Gomtigir had established a Math on a humble scale, that Prem Giri, a grand disciple of his own, that Uttam Gir who succeeded Prem Gir had certainly created one and that the predecessors of the defendant, Mayanand Giri like himself had two kinds of properties, namely Math property and personal property According to the Subordinate Judge the nucleus from which the Math in suit originated was the personal property. of Prem Gir. On the evidence he held 12 items of property mentioned in the will of Shivdutt Gir who" succeeded Prem Gir and two other items of property to be endowed properties. of Prem Gir. On the evidence he held 12 items of property mentioned in the will of Shivdutt Gir who" succeeded Prem Gir and two other items of property to be endowed properties. The transfers effected by Mayanand were according to the Subordinate Judge, beyond challenge because they related only to his personal properties. 4. Two appeals were filed against the judgment and decree of the Subordinate Judge, one by the plaintiff and the other by Mayanand. The Allahabad High Court on appeal dismissed the suit on the view that there was no Math at all, that there was only a banking business and that the property was non-religious personal property acquired by Mayanand and his predecessors by following a banking business. A further appeal from the Allahabad High Court was disposed of by this Court by a judgment dated December 20, 1954. After noting in brief the conclusions of the Subordinate Judge and of the Allahabad High Court, it was observed by this Court that the short and only question therefore before us is, whether or not the existence of the math which is the foundation of the plaintiff s ease has been satisfactorily made out. This Court then proceeded to examine the principal ancient documents and observed : "All the above documents broadly considered, indicate definitely (1) the existence of a spiritual brother-hood affiliated to each other by ties of initiation and succession. (2) the existence of a mutt which is the residence of the brotherhood as well as of the gaddinashin thereof and which in specific terms has been successively provided as being inalienable. (3) the existence of certain properties at least from the date of death of Sheodat Gir which were made specifically inalienable in the hands of his successors, presumably for the use of the spiritual brotherhood, and (4) the existence of a number of items of property which in terms were dedicated for spiritual uses like Dharmashala, feeding of ascetics, etc. (3) the existence of certain properties at least from the date of death of Sheodat Gir which were made specifically inalienable in the hands of his successors, presumably for the use of the spiritual brotherhood, and (4) the existence of a number of items of property which in terms were dedicated for spiritual uses like Dharmashala, feeding of ascetics, etc. and were designated as waqf." This Court then considered the evidence of prior conduct of Mayanand Giri himself and certain admissions made by him and held "that the case of the first defendant denying the existence of a mutt or of any properties as belonging to it is totally false." According to this Court : "it is quite clear that what is now designated as the mutt No. 42/90D must have been in existence at least from the time of Prem Gir i.e. for over a century and that this item of property in the hands of successors of Prem Gir was subject to the condition of inalienability, expressly provided in Prem Gir s Tamliknama, and impliedly so provided in the will of Sheodat Gir". Further "notwithstanding that there is no specific deed of endowment, the fact that the particular building has been continuously used as the residence of the brotherhood and the seat of the head thereof in succession and the fact that it has been specifically provided as being inalienable constitute sufficient evidence of dedication of this building as a mutt" 5. Examining the evidence further, both oral and documentary, this Court was not inclined to concur with the view expressed by the High Court that the evidence did not "disclose the existence at any time of a religious institution or a monastery with any attempt at religious study or religious teaching but that it disclosed only banking or money lending business which passed on from each of its proprietors to his chosen successor". Great stress was laid on the documents of 1828 and 1839-to be noted in detail hereafter- which did not according to this Court, indicate that the ownership given thereby to the successors was to be for their personal uses and that all the transactions disclosed by these and other documents noticed by the High Court were inter se between the members of the brotherhood and not with outsiders. It was observed that "The document of 1887 appears to us to clinch the position by specifically providing that the properties left by Sheodat Gir were not to be alienable in the hands of the successor. The inalienability impressed upon by these properties by the then head of the spiritual brotherhood can reasonably be presumed to be only for the propose of spiritual brotherhood." According to this Court these circumstance should "be normally treated as indicative of the religious character of the property for the use of the brotherhood. 6. The conclusion of this Court (as appearing at page 607 of the paper book) was in these terms :- "We are, therefore, satisfied that the existence of a mutt as an institution has been clearly made out on the evidence in this case and that the building No. 42/90-D belongs to and constitutes the mutt and that the contrary view is untenable. The only substantial question in the case is whether and to what extent the properties in suit belong to this mutt as an institution. The learned trial Judge dealt with this question and held only a few out of the large number of items mentioned in the plaint schedule as belonging to the mutt. The learned Judges of the High Court did not feel called upon to give any finding as to this in the view that they had taken. These appeals will, therefore, have to go back to the High Court for further consideration of this question and of other question left undecided." Finally it was observed (at p. 610) : "that our judgment concludes the question as to whether house No. 42/90-D is or is not mutt property. The only substantial questions that remain are as to which of the other properties in the plaint schedule belong to the mutt and whether such alienations as relate to mutt properties are valid and binding on the mutt. This Court further upheld the finding of the Subordinate Judge in favour of a custom among, the Dasuami Sanyasis of the neighbourhood that by reason of his marriage Mayanand had become a "Patit" and had forfeited the office of Mahantship and the same community had elected the plaintiff as the Mahant of the Math at Tripura Bhairavi. 7. This Court further upheld the finding of the Subordinate Judge in favour of a custom among, the Dasuami Sanyasis of the neighbourhood that by reason of his marriage Mayanand had become a "Patit" and had forfeited the office of Mahantship and the same community had elected the plaintiff as the Mahant of the Math at Tripura Bhairavi. 7. On remand, the High Court examined the ancient documents once more and after referring to the observations of this Court quoted above, stated that it had been definitely found by this Court that some of the properties in suit must belong to the Math and went on to add : In view of this finding of the SC the fact that the evidence on the record does not expressly indicate which property belonged to the Math and which did not should lead to the conclusion that all the property belongs to the math. Property acquired by a Mahant personally but blended with the math property will itself become Math property. He is competent to endow his property. Blending it with Math property is an indication that he endowed it to the Math or intended it to be Math property. According to the High Court : It was, therefore, necessary for the defendants to establish that such and such property was acquired not as a Mahant but as an individual and was also kept separate from the Math property which the Mahant was managing." 8. The High Court then went on to consider the alienations made by the Mahants who had preceded Mayanand Giri from time to time and was of the view: "during this long period the brotherhood did purchase properties but hardly transferred any property and that this may be either as the properties were not considered personal and alienable or as the mahants had no occasion to transfer property, their income being in excess of expenditure." The High Court examined the transactions of Mayanand Giri challenged by the plaintiff and was not satisfied that any enquiry had been made by the alienees about the necessity or the purpose of the math justifying the alienations. In the result, the High Court allowed the appeal with costs throughout against Mayanand Giri and a number of alienees, some of whom only have come up in appeal 9. In the result, the High Court allowed the appeal with costs throughout against Mayanand Giri and a number of alienees, some of whom only have come up in appeal 9. As the matter has now come up before us on five appeals filed by the transferees and Mayanand Giri who died in 1965, it is not necessary to examine the question with regard to the other alienations in detail. 10. Appeal No. 212 of 1965 is filed jointly by two sets of alienees, the first being the representatives of Batak Prasad, defendant No. 7 in the original suit and the representatives of defendants 27 to 29 of the suit. The principal appellant in Appeal No. 213 of 1965 was Mayanand Giri who is now represented by his widow alone although we were informed that Mayanand Giri had and has a son living. Appeal No 2l4 of 1965 was filed by Mayanand Giri against Krishnanand Giri who became the Mahant in succession to Purushottamanand Giri. Appeal No 2l5/1965 was filed by Krishnanand Giri against several alienees in respect of whose alienations the High Court held the suit to be barred by limitation. Appeal No. 216 of 1965 was filed by Marwari Sanskrit College which was impleaded in place of the original defendants 9 to 14. 11. The pedigree of the Mahants and their disciples relevant for the disposal of the appeal is given below. 12. In order to ascertain the character of the properties in dispute it is necessary to examine the more important documents dealing with the Mahantship and/or the properties associated with the Math or being held by the Mahants. The earliest document for this purpose is Ex. WWWW-1 dated 5th March. 1828. This is a Tamliknama or deed of gift by Mahant Gangot Gir in favour of Gauri Gir who was a disciple of his own disciple Ratan Gir. This deed recites that the guru of the executant had in his lifetime given him "all his estate, the property and articles movable and immovable belonging to himself and made me the owner and gave all powers to me in respect thereof". This deed recites that the guru of the executant had in his lifetime given him "all his estate, the property and articles movable and immovable belonging to himself and made me the owner and gave all powers to me in respect thereof". The deed goes on to provide that : "In accordance with the same, I, the executant, am the owner and in possession of the entire estate of my guru whatever share my Guru wanted to give to the former disciples on account of relationship gave it to them in his presence and obtained the farighkhaties having got them executed by those persons. Those persons have no claims at all for it in future. Now I elucidate the facts and state that. Ratan Gir and Bhonder Gir, two disciples of me, the deponent died, without receiving their shares. Lachmi Gir, Nand Girl Chetan Gir, disciples of Ratan Gir and Prem Gir, disciple of Bhonder Gir grand-sons of me, the executant are alive. Kashi Gir, disciple of Bhoder Gir died and in his place Ram Lal Gir and Tulja Gir are alive Gauri Gir, disciple of Ratan Girl has been, from the lifetime of my Guru deceased, the Mukhtar and sarbrakar of all the affairs and the money lending business etc. Also he is at my disposal day and night for the purpose of carrying on all my work. He remains busy to carry on the affairs relating to the money lending business and the expenses of the darbar etc. very prudently and enthusiastically. Therefore having regard to the right, ability, services, diligence and other work of the said person, I, while in a sound state of body and mind have willingly and voluntarily made gift in favour of Gauri Gir aforesaid, of all the properties and milak lands in cash and kind, outstanding debt, articles relating to trade, money lending business of the tenants in respect of the mortgage of zamindari property etc., in Benaras and in other districts, movable and immovable property, Math property, Pakka and Kachcha houses i. e. all the properties owned and possessed by me, the executant. The said donee shall like myself remain the owner of all the things, in cash and in kind in accordance with the custom and practice prevailing in the brotherhood of me, the executant, and shall carry on their business. The said donee shall like myself remain the owner of all the things, in cash and in kind in accordance with the custom and practice prevailing in the brotherhood of me, the executant, and shall carry on their business. The other disciples of me, the executant have no concern with the property, milak lands etc......Gauri Gir aforesaid is and shall remain as usual the owner and wield all powers in respect of management of my work and the affairs relating to the money lending business. Having divided the expenses of Chetan Gir, Lachhmi Gir, Nand Gir and other disciples of Ratan Gir I have willingly given them their shares in cash and in kind according to the details given below whenever the said persons make applications for separation from the Math Sarkar: they should take their shares after executing farighkhatis in respect therefor. As for the share of Bhonder Gir Rs. one lakh for Prem Gir along with the Kashi Gir s other heirs as detailed below, on account of their shares have been given by me separately to the said Gauri Gir with the condition that as long as I the executant am alive I shall remain the owner and wield all the powers in respect thereof. When the said Prem Gir makes an application for separation from this Math, Gauri Gir shall give him and others the shares as detailed below and obtain farigh-khatis from them. There is one big grove with pucca constructions adjacent to the grove of Munshi Ram Pandit and a Math personally occupied by me, the executant, built by my deceased Guru in predecessor. Gauri Gir or any of his heirs sell or mortgage any of the two things to any person and I adjure him to Sri Bisheshar Nath and the Ganges. If any of my disciples or some one else of the disciples of Ratan Gir and Bhonder Gir and others gives himself to immoral pursuits and commits acts prohibited by religion contrary to the practice of the family, of the executant, Gauri Gir should at once remove him out of his office and should not allow him to reside at his place." This is followed by a schedule giving details of the shares of the recipients. Prem Gir is to get Rs. one lakh which is made up of cash Rs. Prem Gir is to get Rs. one lakh which is made up of cash Rs. 50,000 and outstanding debts and gold and silver ornaments and four pucca houses situated near the Ganges. Details of gifts to disciples of Ratan Gir are also given. 13. This document has been quoted in extenso to illustrate the way in which the properties were being treated by the mahant and the nature of the right which he purported to wield over them. The more important of them may be noted below : 1. The Mahant was nominating his successor from out of a large number of persons living with him by his will. The nomination was not because of religious ........ piety but aptitude for business. 2. All the disciples of the donor and the disciples of his disciples had claim upon him which had to be met by suitable provision by way of gift and for which farigh-khatis were to be taken. 3. Some sort of a business was being carried on, i. e. money lending taking of immovable properties on mortgage etc. 4. The mahant made no provision for any religious teaching although he was laying down a code of conduct for the disciples. 5. Gauri Gir and his heirs were forbidden from mortgaging or selling the Math built by the Guru of the executant and the grove of Munshi Ram Pandit. 6. There was no such injunction with respect to any alienation of the other properties. 14. A scrutiny of the above document would lead to the inference that the Mahant was treating himself as the absolute owner of all the properties admitting no claim thereto by any one excepting his disciples and their disciples of the same status as Gauri Gir, the donee. The Math and the grove alone were to be treated as inalienable. 15. On 8th March 1836Tulja Gir, disciple of Kashi Gir filed a suit against Gangot Gir, Bhopal Gir and Prem Gir claiming Rs. 78,386-10-3 alleging that although by Tamliknama dated 5th March, 1828 Gangot Gir had specified the share of the plaintiff, the defendants had wrongfully deprived him thereof. After various proceedings were had and the statements of a number of witnesses recorded, the District Judge of Benaras by a decree dated 17th April, 1838 held that the plaintiff was entitled to 1/4th share in Rs. After various proceedings were had and the statements of a number of witnesses recorded, the District Judge of Benaras by a decree dated 17th April, 1838 held that the plaintiff was entitled to 1/4th share in Rs. 1,00.000 excluding the ornaments mentioned by Gangot Gir for the heirs of Bhopender Gir in the deed of gift in favour of Gauri Gir and that in the circumstances the plaintiff was entitled to 1/4th share in cash, kind or outstanding debts noted in Farigh-khati of Prem Giri. 16. This document shows that the usage or custom relating to the disciples of a Mahant getting part of the properties left by him was enforced by a decree of court. This goes very much against the inalienability of the properties of a Mahant. If they were math properties or endowed properties belonging to the Math, a question of division could hardly have arisen. Such partition or division is more consistent with the properties being the personal properties of the Mahant, descending from him to the heir nominated by him but subject to the claims of others who were his disciples or disciples of his disciples. 17. The next document of importance is a deed executed by Prem Gir on December 2, 1839. This document starts with a recital that the executant had been in proprietary possession and occupation of cash etc. and the estate received by him from Gangot Gir, and that he was nominating Uttam Gir who stood in the relation of a grand chela to him as his successor. The deed is in almost similar terms with regard to the ownership of Uttam Gir in respect of "movable and immovable, houses in Mohalla Tripura Bhairavi, groves in Tulshipur Kotwa and Kamali in Benaras district, cash, kind, outstanding debts and ornaments detailed in the account books" Uttam Gir is being made the absolute and permanent owner of everything mentioned with a direction that Ram Lal Gir, Gayan Gir and Debi Dayal Gir who had claims on the executant were to he paid the diverse sums mentioned in the document upon executing farighkhatis. The executant directed that "Uttam Gir should like myself, remain in proprietary possession of the above-mentioned estate. keep the reputation of the family and the estate permanent and make the management of the affairs. Uttam Gir shall be the owner of the big Math, houses and groves etc. 18. The executant directed that "Uttam Gir should like myself, remain in proprietary possession of the above-mentioned estate. keep the reputation of the family and the estate permanent and make the management of the affairs. Uttam Gir shall be the owner of the big Math, houses and groves etc. 18. The next important document is an agreement executed by Debi Dayal Gir, a grand disciple of Bhonder Gir and himself a disciple of Prem Gir, wrongly described in the document as Bhim Gir. It recites that the executant had purchased Mouza Narina and having no disciple other than Uttam Gir, the owner of Kharkhana and Gaddinashin at Benaras, was making over "all the goods and property, household goods, decree debts and liability and Mouza Narina aforesaid which are owned by me, the executant, to the Math at Benaras". The document further goes on to state that on his death Uttam Gir or his heirs who might be Gaddinashin of the Math "shall have power in compliance with all the conditions of the above to consider himself as permanent owner of my property." This document shows that the Math occupied by Uttam Gir had become fairly well known and the village Narina was being endowed by the executant to the said Math. 19. There is a document which was marked as Ex. C-11 referred to both in the judgment of this Court in 1954 and the High Court on remand which has not been included in the paper books. This document dated May 21, 1865 was a deed of endowment executed by Uttam Gir establishing a Dharamshala in Terhineem for the maintenance and imparting of spiritual knowledge to Sadhus and Sanyasis and endowing the income of the village Mowgarh. 20. The last two documents show that gift of properties to a math or creation of an endowment for a specific charitable purpose were known to the Sanyasis of this math. It does not appear that Uttam Gir nominated his successor or execute any Tamliknama in favour of anybody. 20. The last two documents show that gift of properties to a math or creation of an endowment for a specific charitable purpose were known to the Sanyasis of this math. It does not appear that Uttam Gir nominated his successor or execute any Tamliknama in favour of anybody. On the 1st day of July, 1865 Udaya Gir, disciple of Uttam Gir and Sheodat Gir, disciple of Hira Gir and grand-disciple of Uttam Gir entered into an agreement of arbitration with regard to disputes between them as to how the management and work relating to the Math Ilakas and other things should be done and what would be the share of the disputants in the movable and immovable property, zamindari etc. left by Uttam Gir, the common ancestor in case of disagreement between them. 21. This was followed by another agreement between the same persons arrived at on August 23, 1865. Under this document parties were arranging about the management of the affairs of the estate of Uttam Gir, namely, "the business of the math, ilaqas and other things relating to business." It was provided therein that Udai Gir would be "entitled to 81/2 annas share and owner and Gaddinashin of the Kothi" and Sheo Dat Gir to "71/2 annas share out of the entire movable and immovable property" by Uttam Gir. Parties agreed to obtain a succession certificate in respect of the entire estate of the deceased according to the above shares, viz., 81/2 annas and 71/2 annas. Further, they were to get mutation of names effected similarly in respect of the ilaqas and houses. Cl. 3 provided that "The business of the "Kothi" which was carried on in the name of Goshain Uttam Gir, our ancestor, shall, as usual, continue to be carried on in his name. But the signature etc. of the owner on the hundis shall he made by any one of us who will be present at the Kothi. If both of us are present the signature shall be made by Goshain Udai Gir." Under Cl. 7 the parties agreed to carry on the business on money dealings in consultation with each other and "if any one of them wanted to carry on money-lending business or any other business separately, he might do so after taking money from the Kothi in his name". 7 the parties agreed to carry on the business on money dealings in consultation with each other and "if any one of them wanted to carry on money-lending business or any other business separately, he might do so after taking money from the Kothi in his name". Under Clause 11 the parties were to render accounts of the expenses incurred by him to the other every three months. By Cl. 12 it was provided that if co-operation between them was not possible the parties would get "the entire movable and immovable property partitioned according to the above shares. Thereafter, one shall have nothing to do with the other." This document again throws a good deal of light on the question of the ownership of the properties left by Uttam Gir. The parties agreed that if joint management was not possible they would exercise the right to partition and sever connection from each other. The two persons appear to have proceeded on the basis that they were both entitled to the properties left by Uttam Gir which were to be divided in almost equal shares failing an amicable arrangement for management thereof. It also brings into prominence the business of Kothi which might either be a money-lending business pure and simlpe or a banking business as the reference to the hundis suggests. 22. On 3rd May, 1871 Sheoprasad Gir who is in the line of Ratan Gir made his will wherein he mentioned that he had no relations excepting Sheodat Gir. in the line of Uttam Gir. The only importance of this document is that people of the spiritual brotherhood appear to have been treating the properties in their hands as their personal-properties and this Court in its earlier judgment noted that "the entire property which was in Prem Gir s line came over by virtue of the two documents, Ex. PPPP-1 (the deed of 2nd December 1839) and Ex. PPPP-1 (the deed of 2nd December 1839) and Ex. 33 of the years 1839 and 1863 into the hands of Uttam Girl" It was further noted by this Court that "by about the year 1871 the properties which were in the hands of the other disciples of Bhonder Gir s line came into the hands of Sheodat Gir and that some, if not all, of the properties in the hands of the disciples of Ratan Gir s line also came into the hands of Sheodat Gir as appears from the will of Sheo Prasad Gir Ex. UUU-1 dated 3rd May, 1871." 23. We next proceed to note the contents of Ex. A-11, the will of Sheodat Gir dated 16th June, 1887. This document for the first time tries to enumerate and specify at least some of the properties which the executant thought were endowed properties. The executant described himself as "proprietor of the Karbar of Goshain Uttam Girji, resident of Mohalla Tripura Bhairavi, the exclusive owner of the entire ancestral estate of Goshain Uttam Girji and of other property acquired thereafter. The document recites that the executant had no other coparcener or co-sharer and had absolute rights in respect of the entire property aforesaid to do whatever he liked. After noting that his only disciple, Narotam Gir, had died leaving Sukhdeo Gir and the latter s disciple Kashi Gir, the will proceeds to note that the executant, deeming it prudent to nominate his heir who was to be governed by the conditions given below was setting forth the same. The important things to note in this document are as below : 24. By Clause (3) the executant was laying down the line of succession after him to the effect that he was to be succeeded by Sukhdeo Gir and after him Kashi Gir and that Kashi Gir would have power to initiate after him only one person as his disciple so that disputes of joint rights might be avoided. 25. By Clause (4) the executant was providing that expenses should never over-top the income. 25A. Clause (5) may be quoted verbatim ; "My subsequent heirs or their heirs shall not have the right to mortgage, sell or donate or make a gift of any property in existence at any time, or which might be acquired in future. 25. By Clause (4) the executant was providing that expenses should never over-top the income. 25A. Clause (5) may be quoted verbatim ; "My subsequent heirs or their heirs shall not have the right to mortgage, sell or donate or make a gift of any property in existence at any time, or which might be acquired in future. If they do so, their heirs shall, at all events, have right to have the transaction cancelled. But as regards the property acquired as a result of their personal, efforts or purchased or acquired from the profits of the ancestral property, they shall have power to do anything they like." Clause (8) which too is of great importance may be noted in contrast. By this clause the executant was noting that "The properties given below have been made waqf of, in the time of my ancestor, for charitable purposes, while certain properties in my time. No one has any proprietary title to them. My heirs should use a particular property for the purpose for which it has been allotted and the charities should continue as before. My heirs should continue the supervision, repairs and cleanliness as it has been done all along. None of the heirs shall have any right to act to the contrary." Sub-clause (i) of this clause notes that Uttam Gir had given 6 out of 7 pucca and stone-built houses situated in Mohalla Bisheshar Nath to Brahmins by way of charity and made a waqf of one house to remain as Dharamshala for residence of Vidyarthis. The terms relating thereto were given in the registered Danpatra dated 14th June. 1861. Sub-clause (ii) mentions a house situated in Mohalla Tehri Nib, known as Dharamshala allotted by way of charity for Dharmbhes-Sanyasis. It shall always continue as it is. The charges for the repairs of Dharamshala and the maintenance of the Chattra for feeding Sanyasis as laid down in the registered agreement dated 21st May 1865 continuing all the conditions shall continue to be met as heretofore from the profits and produce of mauza Mahogarh, district Mirzapur. 26. It shall always continue as it is. The charges for the repairs of Dharamshala and the maintenance of the Chattra for feeding Sanyasis as laid down in the registered agreement dated 21st May 1865 continuing all the conditions shall continue to be met as heretofore from the profits and produce of mauza Mahogarh, district Mirzapur. 26. By sub-clause (iii) the executant directed that the income of the Dharamshala known as Baba Ridh Nath situate in Mohalla Misir Pokhra, known as Asthan Dharbeshar to which are attached three houses in the same mohalla and 5 bighas 3 biswas of land in mauza Kanauta, district Benaras under a deed of gift executed by Kashi Gir dated 4th December, 1879 was utilised towards the worship of Mahadeo known as Ridh Nath the repairs of all the four houses aforesaid and the expenses relating thereto. The will directed that the same should be continued. Sub-clause (v) relates to a Dharamshala constructed by Sheodat Gir situate in mauza Solak Ram, district Barara in the Province of Punjab. By Clause (9) the testator was laying down a condition that if any one of his Gaddinashin heirs, contrary to the customs of the line, forsakes the right path and the society of sages and the wise and takes to debauchery or gambling or any other sort of immorality, his disciple or subsequent heir should, in consultation with the members of the sect, have the power to stop the Gaddinashin from his improper conduct and also have the power to deprive him of the Gaddi and the property and take charge thereof. 27. In the earlier judgment this Court had occasion to refer more than once to this document and in particular to Cls. 5 and 8. Counsel for Krishnanand Giri who succeeded Purushottam Giri, the original plaintiff, relied very strongly on the observations made in the earlier judgment that there was a definite finding that the properties left at the date of death of Sheodat Gir were to be held as math properties because Sheodat Gir had sought to make them "specifically inalienable in the hands of his successors. presumably for the use of the spiritual brotherhood" But this Court was careful to add : "This document no doubt, in terms, did not refer to a mutt or provide that the mutt was to be inalienable while it enumerated certain other items of property as waqf." 28. presumably for the use of the spiritual brotherhood" But this Court was careful to add : "This document no doubt, in terms, did not refer to a mutt or provide that the mutt was to be inalienable while it enumerated certain other items of property as waqf." 28. We have already referred to the observations of this Court in the judgment of 1954 which counsel for Krishnanand Giri cited in aid of his proposition that all the properties covered by the will of Sheodat Gir were math properties but in our opinion this Court merely indicated that there was a strong presumption created by this document in favour of the properties being math properties; but that- the High Court, on remand, was free to consider the evidence on the record and come to its own finding as to which of the properties other than 42/90-D were math properties. 29. This Court had noted in the earlier judgment, as we do so again, that the documents which preceded the will of Sheodat Gir do not tend to show that the properties in the possession of the Mahants were ever treated by them except with regard to 2 or 3 items to be endowed properties not capble of alienation by a Mahant. The property which Prem Gir got was undoubtedly his personal property as a result of the Tamliknama of Gangot Gir: From the time of Prem Gir the successive Mahants always treated the properties as personal properties. They all carried on a money-lending business and there can be little doubt that this business accounted for the considerable acquisition of properties by the Mahants. We find ourselves unable to come to the conclusion that by Clause 5 of his will Sheodat Gir was creating any endowment of properties in his possession. The first sentence of Clause 5 shows that there was an interdict against any heir mortgaging, selling or making gift of any property i. e. not only those in existence at the time or which might he acquired in future. It is difficult to see how an endowment could be made of properties not yet acquired. The first sentence of Clause 5 shows that there was an interdict against any heir mortgaging, selling or making gift of any property i. e. not only those in existence at the time or which might he acquired in future. It is difficult to see how an endowment could be made of properties not yet acquired. Almost in the same breath the testator was saying that as regards properties acquired from the profits of the ancestral property, the heir was free to do what he liked therewith, as also any property acquired as a result of the personal efforts of the heir. This suggests that the profits of the ancestral property were to be considered as the personal property of the Mahant. Reading clauses 1 to 7 together, we have no doubt that Sheodat Gir wanted that the properties should be preserved and properly managed and not frittered away. He was not thinking of endowing any property or putting the same beyond alienation because of any such endowment. He was trying to limit the expenses to make provision for proper accounts being kept and strict surveillance of the cash in hand, income and expenditure. Clause 8 shows that the testator knew that certain properties had been made "a waqf of" in the time of his ancestors for charitable purposes. If he was so minded, he could have in his turn used the word waqf in respect of other properties but he did not do so. With regard to the properties which were to be used for particular charitable purposes the testator takes great care in laying down what was to be done. He is also careful to note that "no one had any proprietary title to the properties which were the subject-matter of the waqf . But he does not use any such expression with regard to the other properties. In sub-clause (b) of Clause 8 he mentions specifically a Dharamshala constructed by him in the district of Barara in the Province of Punjab. But with regard to the properties covered by Clause 5 he does not say anything as to what has to be done with the income thereof. In C1. In sub-clause (b) of Clause 8 he mentions specifically a Dharamshala constructed by him in the district of Barara in the Province of Punjab. But with regard to the properties covered by Clause 5 he does not say anything as to what has to be done with the income thereof. In C1. 9 the testator lays down the condition that if any Gaddinashin Mahant acted contrary to the custom of the line or pursuit of the right path it would be open to his disciple and others in consultation with the members of the sect, to deprive him of the Gaddi and the property and take charge thereof. This does not, in our opinion, lead to the inference that the Gaddinashin heir was not to have any proprietary interest in any property left by him. But this is only in keeping with the custom and practice of the particular brotherhood that they should keep to the right path and not deviate therefrom. 30. The observations of this Court in the judgment of 1954 with regard to the properties mentioned in the will of Sheodat Gir other than those specified in clause 8 thereof were not meant to be conclusive of their character as math properties for in that case the math at 42/90-D would not have been singled out for such purpose. If such had been the intention of the learned Judges hearing the appeal in 1954 the Judgment would have clearly stated that all the properties in existence at the date of death of Sheodat Gir were to be treated as math properties alienation whereof could only be upheld for justifying legal necessity. Sheodat Gir, who described himself as the absolute owner of the properties left by his Guru, recognised the right of his successors to acquire private properties even from out of the income of the properties described as ancestral and sought to be made inalienable after his decease. In our view, Cl. 5 of the will was only a mandate to his successors to preserve the properties to be left by him. There was nothing to prevent him from transferring any property other than those covered by Clause 8 in his lifetime or making another will after revoking Ex. A-ll. In our view, Cl. 5 of the will was only a mandate to his successors to preserve the properties to be left by him. There was nothing to prevent him from transferring any property other than those covered by Clause 8 in his lifetime or making another will after revoking Ex. A-ll. His predecessors-in-interest had all treated themselves as full and absolute owners of all property acquired by them barring two items and had transferred properties to others on numerous occasions to members of the brotherhood. The exhibits show that acquisition of bits of property by the Mahants started as early as 1797 by Ghetangir. Every succeeding Mahant went on acquiring various items of property. The largest number of acquisitions seem to have been made during the time of Uttam Gir and Sheodat Gir. It is also undisputed that sales started as early as 1816 and continued down to 1879 leaving out of account the transfers by Mayanand Giri. It must be said that there are a very few instances of transfers to outsiders. Suffice it to say that they were not altogether unknown. Such alienations could not be justified except on the theory that they were the personal properties of the Mahant and in law, it made no difference whether the transfer was in favour of a stranger or to a co-disciple or any other member of the brotherhood. All the transfers passed the title to the property out of the Mahants of the Math to others. In our opinion, by its judgment in 1954 this Court indicated that the words in Ex A-11 considered with the other evidence on the record might establish that the properties to be left by Sheodat Gir were Math properties but the terms of Ex A-11 were not to close the door to such investigation In our view, the High Court fell into an error in holding that the observations of this Court led to the conclusion that all the property belonged to the math because the evidence on the record did not expressly indicate which property belonged to the math and which did not. On the facts of this case it is not possible to hold that the mahants blended theirself acquired and personal property with math property so as to make the whole partake of the character of the latter class of property A Mahant is undoubtedly competent to endow the property acquired by him, but merly because in the Tamliknamas he makes no distinction between property acquired by him personally and property which undoubtedly formed the subject-matter of a prior endowment, the personally acquired properties cannot be said to be math property when the evidence on record establishes that all the mahants were holding themselves out as absolute owners of the property and were transferring various items of property from time to time albeit to persons of the same brotherhood. 31. Exhibit A-11 establishes that various items of property mentioned in Cl. 8 thereof had been made waqf property in the time of the ancestors of Sheodat Gir and Sheodat Gir himself declared that "no one had any proprietary title thereto." At the bottom of paragraph 125 of his judgment the Subordinate Judge appended a table of the properties of which there was cogent evidence of endowment. Besides the twelve items of property tabulated therein, he has mentioned in paragraph 187 of his judgment that item No. 5 of Schedule II to the Plaint was the temple and must be an endowed property. In paragraph 189 of his judgment the learned Subordinate Judge refers to Ex. 38 i e. a deed of 1868 executed by Devi Dayalgir endowing the village Narina or Nirbhan in the Math i. e. item No. 42 of Schedule of the plaint. No argument was advanced to show that the learned Subordinate Judge had gone wrong and this item too must be treated as math property. Besides these 14 items, this Court held that premises No. 42/90- D was math property. For the sake of precision, we are giving a list of the properties found by us to be math properties in Schedule A hereto. Premises 42/66-D appears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. Premises 42/66-D appears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. This item of property was first mortgaged to defendant No. 7 Batuk Prasad and was covered by the sale deed in his favour. 32. On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties. The fact that the predecessors-in-interest of Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties. In Parma Nand v. Nihal Chand, 65 Ind App 252 the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives. There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust. The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela. This was not accepted by the Judicial Committee and it was observed that : "this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character." In Raghbir Lala v. Mohammad Said, AIR 1943 PC 7 the plaintiffs case was that the land in suit claimed by the defendants directly or indirectly under transfers made in 1915 and 1916 by one Jainandar Kirat were debutter. It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose. It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes. According to the Judicial Committee : "He appears to have made money by practising astrology and medicine and by lending money-occupations which he added to that of a religious teacher........His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community. The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar. The Board further observed : "No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a man s religious opinions or professions can make him incapable in law of holding property." 33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued a money-lending business, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject-matter of an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No. 42/90-D were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they are subject-matter of the appeals before us. 34. Appea1 No. 212 of 1965 must therefore be allowed. In this appeal the alienations which were sought to be upheld were those in favour of Batuk Prasad, defendant No. 7 by a sale deed dated 14th Sept. 1925., and a usufructuary mortgage deed dated 18th May, 1927 in favour of Harikishan Das, Jaikishan Das, Udaikaran Das and Jagmohan Das, defendant 29 to 32. None of these properties are math properties. As the will of Hardeogir was not proved against defendant No. 7, Batuk Prasad, premises No. 42/66- Tripura Bhairavi cannot be said to be a math property. 35. In the result, the suit as against the representatives-in-interest of defendant No. 7 and defendants 29 to 32 is dismissed. The respondent, Krishnanand Giri will be at liberty to withdraw the sum of Rs. 15,000 deposited in the court of the Additional Civil Judge of Benaras as security for taking possession of the properties transferred to Batuk Prasad including interest, if any. 36. The respondent, Krishnanand Giri will be at liberty to withdraw the sum of Rs. 15,000 deposited in the court of the Additional Civil Judge of Benaras as security for taking possession of the properties transferred to Batuk Prasad including interest, if any. 36. Appeal No. 213 of 1965 was filed by Mayanand Giri, defendant No. 1, Bishwanath Prasad and Mahadeo, defendants 15 and 16-appellants 2 and 3 herein-and one Uma Pado Banerjee, defendant No. 42. Uma Pado Banerjee died during the pendency of the appeal and his widow, Smt. Shantimai Devi and sons and daughters, Birendra Kumar and Binaya Kumar, Smt. Jayantika, Kumari Parantika and Kumari Mainatika, the last four being minors though their mother, Shantimai Devi, were substituted by an order of Court dated 25th February, 1960. Uma Pado Banerjee is now represented by appellants 4 to 9. Mayanand Giri also died in 1965 and his widow was substituted in his place by an order of the Allahabad High Court. We were shown a copy of the petition of Smt. Gajeshwari Devi, widow of Mayanand Giri, to the effect that Mayanand Giri had died leaving besides her, a son by name Anand Deo and two daughters named Indu Devi and Manjiri Devi and that the son and daughters were not interested in prosecuting the appeal. According to the copy of the petition of Gajeshwari Devi, a prayer was made that the son and daughters should be added as pro forma respondents. The son and daughters do not appear to have been brought on the record in terms of the petition, but we are not aware as to whether it was a mere omission or done at the suggestion of the other parties appearing before the High Court. It would therefore appear that the application made by the widow was a bona fide one and no objection appears to have been taken to the course put forward on her behalf. This appeal of the first appellant which arises out of F. A. No. 523 of 1933 is allowed in part with respect to properties other than (a) the 15 items of math properties already mentioned and (b) the properties which were alienated by Mayanand to the defendants who have not appealed and against whom the High Court decree has become final. The High Court decree will stand confirmed with respect to the aforesaid 15 items of math properties and the properties which were alienated to the defendants who have not appealed. The appeal is also allowed with respect to the appellants 4 to 9 as regards the properties covered by the alienations in their favour. These are premises No. 42/105-D owned by appellant 2 and 8 and premises No. 42/195-D owned by appellants 4 to 9. We leave open the question as to whether on the death of Mayanand Giri, his widow or his son and daughters can succeed to the properties other than math properties, left by him or whether such properties devolved on Krishnanand Giri on the death of Mayanand Giri. 37. Appeal No. 214 of 1965 which arises out of First Appeal No 557 of 1930 was filed by Mayanand Giri against Purushotamanand Giri. This appeal is dismissed. 38. Krishnanand Giri filed appeal No. 215 of 1965 against several alienees or their representatives who have not appeared before us. They are the heirs and legal representatives of defendants Nos. 3, 18, 19 and 35 as also original defendants Nos. 33 and 45. The High Court had held the suit by Purushotamanand Giri to be barred by limitation inter alia against defendants 18, 19 and 35 : it had also held that the plaintiff could not challenge the decree against defendant No. 33. The suit had also been dismissed against defendant No. 45. The High Court had awarded costs to defendant No. 3. It was argued before us that the High Court had gone wrong in upholding the alienations of certain properties held by it to be math properties to the respondent in this appeal and that as the respondents in this appeal had not questioned the finding of the High Court with regard to the properties as math properties we should proceed on the basis that they were math properties. We do not think we can accede to this contention as we have already found that excepting the 15 items mentioned, the others were not math properties and consequently their alienation cannot be questioned on that ground. The appeal is dismissed. 39. We do not think we can accede to this contention as we have already found that excepting the 15 items mentioned, the others were not math properties and consequently their alienation cannot be questioned on that ground. The appeal is dismissed. 39. Lastly, Appeal No. 216 of 1965 is by Marwari Sanskrit College and one Vaidya Bhushan Sharma who have come up against the finding of the High Court that the alienations in favour of defendants 9 to 14 were not binding on the math or the plaintiff. During the pendency of the appeal, some of these defendants died and the present appellant, Marwari Sanskrit College was brought on record. As it has not been shown to us that the property in dispute in this appeal was endowed property, Mayanand Giri was competent to transfer it as he appears to have done for sufficient consideration. The appeal is allowed and the suit as against this appellant will stand dismissed. We are awarding no costs to any of the parties in the various appeals disposed of to day. The parties may pay and bear their own costs throughout subsequent to the order made by this Court in 1954. As regards mesne profits ordered by the High Court, we only confirm the same as against the alienees who have not appealed. Except as above, there will be no other order for mesne profits. SCHEDULE A Item No. Schedule No. in the plaint Serial number of the Schedule Nature of the property Situation 1 2 9 Dharamshala Uttamgiri No. D 1/12. Mohalla, Bisheshar Nath Rigal City Benaras. 2 2 2 Dharamshala Uttamgiri No. D 5/49. Mohalla Terhi Nib, Benaras 3 4 84 Zamindari Village Mowgarh district Mirzapur 4 8 1 Temple of Baba Ridh Nath No, D 17/1 Mohalla Misri Pokhra Benaras 5 2 6 House No. 47/76 Misri Pokhra Benaras. 6 2 7 House No.47/77 Do. 7 4 14 Agricultural land Village Katenna. district Benaras 8 2 8 Dharamshala Pitambari No. 36/22 Mohalla Lachmipura, Benaras 9 2 4 Dharamshala Kanda Village Kandwa Benaras. 10 4 15 Grove Kamoli. 11 2 12 Dharamshal named after Sheodatgir Village Phulgram, district Hazra, Punjab 12 4 16 Land in Dhurbeshwar . . Ramapura. 13 2 5 Temple 42/25D . . . . . . Tripura Bhairavi. 14 4 42 Mouza Nirbhan . . . . . Mirzapur district. 15 1 1 Math 42/90 . . . 10 4 15 Grove Kamoli. 11 2 12 Dharamshal named after Sheodatgir Village Phulgram, district Hazra, Punjab 12 4 16 Land in Dhurbeshwar . . Ramapura. 13 2 5 Temple 42/25D . . . . . . Tripura Bhairavi. 14 4 42 Mouza Nirbhan . . . . . Mirzapur district. 15 1 1 Math 42/90 . . . . . . Tripura, Bhairavi, Benaras Order accordingly For Citation : AIR 1968 SC 1032