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2009 DIGILAW 2025 (RAJ)

Om Prakash Das v. Shri Suraj Karan Das

2009-09-16

JAGDISH BHALLA, M.N.BHANDARI

body2009
JUDGMENT 1. This appeal is directed against the order dated 10.02.2009 whereby the writ petition preferred by the appellant was dismissed. 2. The facts relevant to the case are that there exists "Dadumath" at village Sardarpura, District Tonk. To regulate the affairs of the aforesaid "Math", a public trust was created and got registered with Devsthan Department. According to the arrangement made, the "Mahant" was taken as head of spiritual family consisting of disciples. Succession of the "Mahant" was to be made by nomination in the form of will or as per the custom prevalent in "Dadupant Community". Mahant Gordhan Das made a "Will" on 15.01.1980 with its registration on 19.01.1980, nominating appellant as a next Mahant. Mahant Gordhan Das then expired on 17.02.1987. At the time of death, the appellant was minor, he moved an application through the guardian for appointing him as "Mahant". One Suraj Karan Das also made in application of similar nature before Assistant Commissioner of Devsthan Department. After hearing both the parties, the Assistant Commissioner rejected the application of the appellant vide order dated 10.07.1989 and at the same time, accepted the application of the respondent Suraj Karan Das. The appellant preferred an appeal before the Commissioner, Devsthan, Udaipur, which was also dismissed, thus the appellant preferred the writ petition but therein also, the appellant remained unsuccessful. 3. Learned counsel appearing for the appellant submits that once the Will is executed nominating the appellant as "Mahant", subsequent Will cannot be executed and otherwise also, the appellant was member of spiritual family, thus entitled to become "Mahant". It is stated that the Will initially executed on 15/19.01.1980 was erroneously revoked on 01.09.1983. In the subsequent Will, the respondent No. 2 was nominated as "Mahant" but in view of the judgment of the Hon'ble Apex Court in the case of Sri Mahalinga Thambiran Swamigal v. His Holiness Sri La Sri Kasivasi Arulnandi Thambiran Swamigal, reported in AIR 1974 SC 199 , once the Will is executed nominating one person as Successor of the `Math', subsequent will cannot be executed unless good cause is shown. According to the learned counsel for the appellant, the learned Single Judge failed to consider this aspect of the matter while upholding the order passed by the Assistant Commissioner and Commissioner of the Devsthan Department. 4. According to the learned counsel for the appellant, the learned Single Judge failed to consider this aspect of the matter while upholding the order passed by the Assistant Commissioner and Commissioner of the Devsthan Department. 4. Learned counsel for the respondent, on the other hand, submits that the Will dated 19.01.1980, on which reliance has been placed by the learned counsel for the appellant was subsequently cancelled and a new Will was made on 01.09.1983 Pursuant to the aforesaid Will, the respondent has rightly been taken as Mahant of the Math. So far as the judgment of the Hon'ble Apex Court referred above is concerned, same is no applicable in the facts of this case. On cancellation of the Will, the document becomes non-existent and accordingly, no reliance can be placed on non-existent document. The subsequent Will dated 91.09.1983 was created looking to the fact that the appellant was only minor not only till the year 1983 but even at the time while Mahant Gordhan Das died in the year 1987, hence the Will dated 19.01.1989 was cancelled and new Will was created on 01.09.1983. The appellant was never taker as `Mahant' after completion of the religious ceremonies, which otherwise a material fact considered by the Hon'ble Apex Court in the case of Sri Mahalinga Thambiran Swamigal (Supra). 5. We have considered the rival submissions made by the learned counsel for the parties and scanned the matter carefully. 6. So far as the first issue is concerned, from the perusal of the order passed by the Assistant Commissioner dealing with the factual aspects, it comes out that the first will was executed on 19.01.1917 but was then cancelled pursuant to the second Will dated 01.09.1983. The reasons given is that the appellant was a minor, therefore, not in position to look after the affairs of the `Math' and accordingly, new Will was executed. This is to show a good cause for cancellation of first Will followed by making of another Will. It is also a fact that earlier Will having been cancelled or superseded by subsequent Will dated 01.09.1983. The earlier Will lost its significance in the facts and circumstances of the case. This is to show a good cause for cancellation of first Will followed by making of another Will. It is also a fact that earlier Will having been cancelled or superseded by subsequent Will dated 01.09.1983. The earlier Will lost its significance in the facts and circumstances of the case. It is not only a case where good cause has been shown to change the nomination of `Mahant' but it is also a fact that no religious ceremonies took place while the first Will was executed so as to complete the formalities regarding the nomination of the appellant as `Mahant'. It was merely an execution of Will nominating the appellant as successor but no follow-up action has been shown by the learned counsel for the appellant. The aforesaid fact is relevant in view of the judgment of the Hon'ble Apex Court referred to above, therein subsequent nomination by another Will was not held to be legal for the reason that therein nomination proceeded with the religious ceremonies to endorse the nomination and further, no good cause was shown to change the nomination. If the present case is. looked into, not only there exists good cause to change the nomination of `Mahant' but it is also a fact that the appellant has not shown and proved the fact that even the religious ceremony took place to complete his nomination. Hence, the judgment of the Hon'ble Apex Court does not help the appellant, as the facts of this case are distinguishable than of the fact of the case in reference of the Hon'ble Apex Court. 7. So far as the other argument of the learned counsel for the appellant is concerned, it is stated than the appellant was from the spiritual family whereas the respondent was not from the same family. If the factual aspect narrated was not from the same family. If the factual aspect narrated and dealt with by the Assistant Commissioner is looked into, then it becomes clear that the respondent No 1 was belonging to the same family and was major at the relevant time. In view of the above, even the second argument raised by the learned counsel for the appellant fails. 8. In view of the discussion made above, we do not find merit in the appeal and otherwise there exists no error in the judgment of the Hon'ble Single Judge. 9. In view of the above, even the second argument raised by the learned counsel for the appellant fails. 8. In view of the discussion made above, we do not find merit in the appeal and otherwise there exists no error in the judgment of the Hon'ble Single Judge. 9. Accordingly the appeal is dismissed with no order as to costs.Appeal dismissed. *******