RAM DOSS v. DEVENDRA DOSS

A HIS HOLINESS DfGYA DARSHAN RAJENDRA RAM DOSS; ##### v. DEVENDRA DOSS B ### c D E F G **H** _November_ 6, 1972 [A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ-1 _Tirupati Mutt-Succession_ _to_ _office_ _of_ _Mohunt-Succ'1sor must_ _be_ _North-Indian Brahmin and serrior-most disciple_ _of_ _last_ _Mohunt-Agree-_ _ment acknowledging R_ _as_ _North-Indian_ . _Brahmifl,-A.greement cannot·_ _mpport_ _plea_ _of estoppel when both parties adduce evidence before the_ _Court-If_ _there_ _is_ _a break_ _in_ _line_ _of_ _succession the custom_ _mu.st_ - _be_ _re-establi•hed_ _as_ _from death_ _of_ _last_ _reigning mohunt._ Succession to the office of Mohunt of the Mutt at Tirupati in Andbra Pradesh is regulated by custom which provides that upon the death of **a Mohunt** **his** **senior disciple becomes next mohunt.** **This is, however,** subject to the condition that the senior disciple must be a North-Indian Brahrnin. Jn 1947 P was the Mohunt of the Mutt. Upon his death in 1947 the succession was disputed 'between N and C. The dispute WM resolved under the terms of the compromise recorded in. Ex. B-8. Under the compromise N became the Mohunt, and :ffter him the office was to devolve on C and after C on a senior disciple of N. Upon the death. of N in 1958 there was again a dispute as to succession. C claimed to he the mohunt under the terms of Ex. B-8, while R the present appelli>nt claimed the office by virtue of his status as a senior disciple of N. The dispute was settled in terms of a document Ex. B-1 whereby C was. **to succeed** **N** **and** **after C the office** **was** **to** **go to** **R.** **Very soon after** this on 18 March, 1962 C died. Dispute again arose about succession R claimed the office in terms of Ex. B-8 and Ex. B-1 and also by virtue. or bis being the only surviving disciple of N. The other claimant was. D, the respondent in this appeal, who put up claim to the office by virtue of his position as senior disciple of the last reigning Mohunt. As D was. a nainor, a suit was filed on his behalf by his next 'friend. In that suit he claimed for a declaration _'df_ his title to tl\e office of mohunt with all the properties e.ttached to the office as well as an injunction against R restraining ·him from interfering with affairs of the Mutt. The subordinate Judge held that R was a North-Indian Brahmin and. was entitled to succeed as the senior disciple of N and the period of rnohuntship of C was to be treated as a break in the practice of the customary rule that only the seniormost disciple succeeds upon the death of the reigning· mohurt.. In the appeal the High Court found that N was not a Northlndian Brahmin and therefore not entitled to succeed. The High Court further held that since D was a senior disciple of C he should· by th0> rule of custom succeed to the office of the mohunt upon the death of C. R a.ppealed to this Court with certificates. HELD : ( 1) The High Court was right in its findings that the plain-. tiff was a North-Indian Brahmin while the defendant was a South-Indian l yen gar. It was true that there was a recital in Ex. B-1 that R was a North-Indian Brahmin. Apart 'from the solitary evidence, the entire. evidence on record went to show that R was not North-Indian Brahmin. [915 CJ Even though a clear plea of estoppel arose from the recital in Ex. B-1 the defendant did not rely on this plea and entered into an issu0> on the fact so that :he whole matter became open for the decision of th0> learned subordinate Judge. R not only failed to invoke the doctrine of· estoppel before the learned Subordinate Judge but joined issue with the· 911 ·912 SUPREME COURT REPORTS [1973] 2 S.C;R, ylaintiff upon the qqfstion whether the defendaJt was not a North-Indian Jlrahmin and accordingly an issue was raised and evidence adduced on A B ### c D E F G this· question R could not therefore rely on the doctrine of estoppel to prevent the plaintiff from proving that ·R was in fact not a North-Indian Brahmin. ln the light of the foregoing considerations there was no .reason to discard the finding of 'fact recorded by the High Court to the .di'ect that D was North-Indian Brahmin and R was not 1,916 C; E & '917 Al _Young .and Anr._ v. _Raincock,_ 18 L.J.C.P. 193 and _Greer_ v. _Kettle_ _Re Parent Trust_ & _Finance_ _Co._ _Ltd.,_ [1937) 4 All. E.R. 397, referred to. (2) It was not possible to make R the mohunt for the simple reason .that he was not a North-Indian Brahmin. The rule of custom should prevail in all cases and if any aberrations have to be corrected such correction must take its in the direction of re-establishing the rule of custom. [918 Al _Annasami_ _Pillai_ _and_ _Ors._ v. _Ramakrishna Muda/iar and Anr.,_ 1.L.R . . 28 Mad: 219, relied on. (3) In most cases if there is a break in the customary rule it may not at all be possible to ·revert back to the customary succession if one has to start from the point when the original break had commenced. In such cases even if it may be possible to revert to the customary practice, it may not be possible to go back to the point where the customary line of succession had its first break. Thus, in this case though it had been possible to trace at least one person who was a disciple of N after whom the customary pradtice was broken and the office handed over to an alleged interloper, even this lone survivor of the original line of succession was not a person who was competent to become the Mohunt by •the immemorial. custom of the Mutt. Therefore, it was nt;>t possible at all to re-establish the customary line of succession if one treats the period of _Cs_ mohuntship as altogether non-existing. It was not open to the Court to lay down a new rule of succession or to alter the rule of succession completely. The only way to save the custom was by accepting something as a fact which had so far been accepted bv everybody concerned with the Mutt as a faCt and which could not any longer be undone with· out demolishing altogether the custom of the Mutt. [918 B-GJ In these circumst®ces it must be held that D was entitled to succeed -C as his senior-most disciple on the strength of immemorial custom of this Mutt. [919 El CrvrL APPELLATE JURISDICTION : Civil App~al No. 407 "(N) of 1971. Appeal by certificate from the judgment and decree dated September 21, 1970 of the Andhra Pradesh High Court in A.S. No. 476 of 1966. . _M. C. Chaglil, M._ _X._ _<;ardoze._ _E. C. Agqrwa/a_ and _A.T.M._ _-Sampath,_ for the appellant. _K._ _R._ _Chowdhary_ and _K._ _Raje11dra_ _Chowdhary,_ for the respondent. The Judgment of the Court was delivered by. H MuKHERJEA J. This appeal by certificate from a judgment ·Of the High Court of Andhra Pradesh arises out of a dispute re RAM DOSS v. DEVENDRA DOSS _(Mukherjea,_ _J.)_ 913 garcling thr: succession to the office of the spiritual heao (Mohunt) of Sri Swami Hathiramjee Mutt, Tirumalai Tirupati. The facti; out of which the appeal anses may be stated briefly. Succession to the office of the Mohunt of the Mutt is admittedly reguiated by custom which p1ov1des that upon the death of a mohunt his senior disciple becomes the next mohunt. This is, however, subject to the condition that the senior disciple must be a North-Indian Brahrnin. In 1947 Sri Prayagadasjee Varu was the Mohunt of the Mutt. Upon his death in 1947 there was a dispute about the succession to the office of Mohuat between two contestants _viz._ Sri Narayanadasjee Varu and Sri Chetandossjee Varu. The dispute appears to have been resolved by the intervention of what is described as the Supreme Council of Mohunts _viz_ the Akada Panchayat. Under the terms of compromise which are to be found in Ex. B-8, Sri Narayanadasjee Varu became the Mohunt and after him, the office was to devolve on Chetandos5 and after Chetandoss on a senior disciple of Narayandasjee Varu. Narayandasjee Varu died in 1958 and there was again a dispute as to who would become the next mohunt. Chetandos claimed to be the mohum under the tenns of Ex. B-8 while Sri Rajendra Ram Doss Jee Varu the present appellant before us claimed the office by virtue of his status as a senior disciple of Narayanadasjee Varu. Rajendra Ram Doss Jee Varu filed a suit to establish Ms right. The dispute and the suit were both settled by another agreell1i:nt between Chetandoss and Rajendra Ram Doss Jee Varu the terms of which are to be found in Ex. B-1. Under this agreement Chetandoss was to succeed Narayanadasjee Varu and, after Chetandoss, the office was to go to Rajendra Ram Doss. Very soon after this, however, on 18 March 1962 Chetandoss died. This be,came the occasion for yet another dispute about the succession to the office of the mohunt. Rajendra Ram Doss claimed to be the mohunt in terms of the two agreements we have referred to just now and also by virtue of his being the only surviving disciple of Narayanadasjee Varu. Devendra Doss Jee, the respondent in this appeal, however, put up a claim to the office of mohunt by virtue of his position as a senior disciple of the last reigning mohu"nt Chetandoss. He was. however, a minor at that time and a suit was filed on his behalf by his next friend Sri Mukundadasjee Varu, Mohunt of Bugga Mutt, Tirupati. In that suit he claimed for declaration of his title to the office of the mohunt with all the properties that are attached to that office as well as an injunction against Rajendra Ram Doss Jee Varu restraining him from interfering with the affairs of the Mutt. A B #### c D E F G At the _ti.me of the trial of the suit both parties agreed about two propositions : H (i) By immemorial custom and nractice. upon the death of a mohunt his eldest or seniormost disciple succeeds to the Gaddi; and 914 SUPREME COURT REPORTS [1973] 2 S.C.R. (ii) Only a North-Indian Brahmin.is entitled to be a mo hunt. It was contended by each party before the learned subordinate Judge that the other party was not a North-Indian Brahmin, The learned Subordinate Judge held that the defendant Rajendra Ram Doss was a North-Indian Brahmin and was also entitled to suc_ ceed as the senior disciple of Narayanadossjee Varu. Acc0rding A B ### c D E F G H to the learned Subordinate Judge the period of mohuntship of Chetandoss was to be treated as a break in the practice of the customary rule that only the seniormost disciple succeeds upon the death of the reigning mohunt. Devendra Doss appealed against this judgment to the High Court. The High Court found on facts tllat Narayan Doss was not a ~orth-lndian Brahmin and was, therefore, not entitled to being considered as a possible successor to the office of the mohunt. The High Court further held that since Devendra Doss was the senior disciple of Chetandoss he should by the rule of custom succeed to the office of the mohunt upon the death of Chetandoss. On these grounds the High Court upheld the plaintiff's appeal and gave a declaration in his favour and also an injunction against Narayan Doss from interfering with the affairs of the Mutt. Rajendra Ram Doss has now appealed from the decision of the High Fourt. Mr. Chagla appearing for the appellant raised two contentions in support of the appellant's claim. First, he contended that the customary rule by which a senior disciple succeeds to the Gaddi of a mohunt upon the death of a reigning mohunt has always prevailed in this Mutt except for what may be described as an _intor-_ _regnum_ when Chetandoss was installed as the Mohunt. It was during this period that there was a departure from the custom and at the end of this period the custom has been restored. Therefore, Mr. Chagla argued, if after the death of Chetandoss his period of mohuntship be altogether ignored, Rajendra Rain Doss would automatically become entitled to become the mohunt as the senior disciple of Narayandass. Secondly, Mr. Chagla argued that Devendra Doss, the respondent, is bound by the agreement of 15 July 1961 which not only recognised that Rajendra Ram Doss was a North-Indian Brahmin but also stipulated that Rajendra Ram Doss as the only surviving disciple of Narayanadass ·should become the Mohunt of the Mutt. It was eontended that since Rajendra Ram Doss claimed through Chetandoss, he could not throw overboard the agreement to which Chetandoss was a party. In other words, Mr. Chagla sought to meet the finding of fact arrived at by the High Court to the effect that Rajendra Ram Doss was not a North-Indian Brahmin by pointing out that Devendra Doss would be estopped from making that contention in view of the clear statement in the agreement of. 29 Octo~er 1947 that Rajendra Ram Doss was in fact a North-Indian Brahmm. A B ## c D E F G RAM DOSS v. DEVENDRA DOSS _(Mukherjea,_ J.) 9 15 For the sake of convenience we shall examine thes~ two sontentions of Mr. Chagla in the reverse order; that is to say, we shall deal with his second contention first. The High Court after carefully examining the evidence on record has come to a clear finding on facts that Rajendra Ram Doss was not a North-Indian Brabmin. The High Court has also found that the respondent Devcndra Doss was a North-Indian Brahmin. This Court is not generally inclined to set aside or ignore the findings on fact of th~ High Courts unless they appear to have been mnn;fostly wrong. ln tl1is case, however, after going through th~ ·~vidence ourselves we are clearly of the opinion that the High Court was right in its findings that the plaintiff was a Nonh-Indinn Brnhmin while the ##### defendant was a South-Indian Iyengar. It is true that there is a recital in Ex. B· 1 which is the agreement executed by and between Chetandoss and Rajendra Ram Doss on 15 July 1961, that Rajendra Ram Doss was a North-Indian Brah111in. It. may be ## useful here to set out the mntcrial portion of the agrec111ent :- "Now, therefore, it is agre.ed as follows :### ( 1) x x x (2) x x x (3) Sri Digyadarsan Rajendra Ramdossjee Varu (the plaintiff in t!1e suit) who is a North Indian Hindustani Brahmin and a disciple of the late Mahant Narayandossjee Varu has to succeed to the Mahantship after (the Defenda!lt) Sri Mahant Chethandossjee Varu and till then he shall be the junior Mahan!; Far from treating this as an evidence in support of Rajendra Ram Doss's contention that he was a North-Ind;an Brahmin the High Court considers this to be a very suspicious recital. The High Court observes : " ........ T;,e very description of the defendant in Ex. B· l as a North,Indian Brahmin when in the context of that document it was really unnecessary to describe him as such makes the recital suspicious." Apart from this solitary evidence of Ex. B-1 the entire evidence on record goes to show that'Rajendra Ram Doss was not a NorthIndian Brahmin. Mr. Chagla .• however. contended that since Devendra Doss is claiming th;·ouglt Ch~tLndoss, h~ is estopped from denying t)1e correctness of a cate~orical statement made in H an agreement to which Chetandoss was a principal nartv. The princiole on which, Mr. Chegla relies has b·~en formu'ated by Gross in his book on Evidence, Third Edition, in :he fellowing manner:7-Ls21s .. p. c1m 916 SUPREME COURT REPORTS [1973] 2 S.C.R. "It not infrequently happens that two people agree, expr~ssly, or by necessary implication, that their legal · relatmns shall be based on the assumption that a certain state of facts exists, and, when this has been done, the original parties to the agreement, as well as those claiming through them, are estopped from denying the existence of the assumed state of facts." Though this principle invoked by Mr. Chagla is quite correct so far as it goes and is a principle which has found expression: in a large number of judgments, ancient and modern, we do not think that in the facts of this case Mr. Chagla's client can rely on this principle. Even though a clear plea of estoppel arises from the recital in Ex. B-1 the defendant did not rely on this plea and entered into an issue on the facts so that the whole malter became ##### open for the decision of the learned Subordinate Judge. I.i Young _and_ _Anr._ v. _Raincocfa(')_ Coltman, J. after having observed that "where it can be collected from the deed that the parties to it have agreed upon a certain admitted state of facts as the basis on which they contract, the statement of those facts, though put in the way of recital, shall es top the parties to aver the contrary", yet refused to treat the recital of the deed as concJusive on the question before him cin the ground that "if the estoppel appears on the record the party who is entitled to take the advantage.of it, instead of relying on it goes to issue on the fact, he puis the matter at large, and the jury may disregard the estoppel" 1n the instant case Rajendra Ram Doss, the detendant, not only failed to invoke the doctrine of estoppel before the learned Subordinate Judge but joined issue with the plaintiff upon the question whether the defendant was not a North-Indian Brahmin and accordingly an issue was raised and evidence adduced on this question. Rajendra Ram Doss cannot, tMrefore, rely on the doctrine of estoppel to prevent the plaintiff from proving tliat Rajendra Ram Doss was in fact not a North-Indian Brahmin. The principle has been confirmed by a recent decision of the House of Lords in _Greer_ v. _Kettle_ _Re_ _Parent Trust_ & _Finance Co.,_ _Ltd.(')_ Referring to the decifr,n of _T"ainson_ v. _Tremere (')_ which is often relied~ upon as an authority for the proposition that, in all circumstances, statements in deeds estop all parties to the deed from ever alleging and proving the true facts, Lord Russell, in his opinion, observed : "I would not, speaking for myself. be prepared to ac~ept it as authoritative at the present day ....... . Later decisions: however. put the matter on what seems to be the sounder basis." (I) 18 L.J.C.P. 193. (2) [1937] 4 All. E.R. 397. (3) [1834] 1 Ad. & El. 792. A B #### c D E F G H B # c _D_ F H RAM DOSS v. DBVBNDllA DOSS _(Mukherjea,_ _J.)_ 917 Then, his Lordship quotes with approval the observation of Coltman J. in _Young and Anr._ v. _Raincock(')·which_ we have already cited above. In the light of the foregoing considerations we see no reason to discard the finding of fact recorded by the High Court to the effect that Devendra Doss was a North-Indian Brahmin and Rajendra Ram Doss was not. We now come to the.first contention of Mr. Chagla. Starting from ihe proposition which is admitted by both parties to the suit and which states that by immemorial custom the office of Mohunt upon the death of a reigning mohunt goes to the latter's seniormost disciple, Mr. Chagla contends that by this test Chelan Doss could. not have become the Mo hunt when he assumed that office as a result of the two agreements embodied in Ex. B-8 and Ex. B· 1. He further suggests that the period between Chetan Doss' accession \o the office and his demise should be treated as an _inter-regnum_ of irregularity which is to be ignored completely as if it never came to happen. On this footing, since Chetan Doss succeeded. Narayan Doss the office of trie Mohunt is to be filled up by finding out who would be the person entitled to succeed upon the demise of N1ttayan Doss. That is how Mr. Chagla sought to claim this office for Rajendra Ram Doss who, it was contended, was the only surviving disciple of Narayan ·Doss. Reliance was placed for this proposition on a Division Bench Judgment of the Madras High Court in. _Amzasami Pillai and Ors._ v. _Ramakrishna Mudaliar and Anr._ (') in which it was held that it would seem "not unreasonable to hold thal where a person, who had no right to the office of a trustee according to the rule of devolution established by the founder, acquires a title to the office by prescription, but restores it to one, who, except for the trans· feror's prescriptive title, could have taken the office according to the rules laid down by the founder, such transfer should be treated as an exception to the general doctrine thaf a trusteeship is not assignable ........ for such a transfer would put an end ·10 the continuance of a management inconsistent with the founder's intention and once more Jet in the class of persons by whom the ##### founder contemplated the management should. be carried on". It was argued that after the death of Narayan Doss .his senior disciple should have become the Mohunt according to the rule of custom which is paramount in the~e matters. 1'1iough the fact re· mains that Chetandoss became the Mohunt as a result of two agreements after his death, the customary line of succession should be restored and a senior disciple of Narayan Doss at that point of time should become the Mohunt. This could be achieved only by giving the office of Mohunt to Rajendra Ram Doss. 1 1 ~ L.J.C.P. 193. (2) I.L.R. 28 Mad. 219. 918 SUPREME COURT REPORTS A;,/<;have already s~.u, it is not possible to make Rajendra Ram Doss the Mohunt for tile s!mple reason that he has been found not to ~ a North-Indian Brahmin. Even on the assumption that Rajendra Ram Doss was the senior-most disciple of Narayan Doss at the tirne _oI_ the latter's death and, therefore. satisJzes the requirement of one cuctomary rule, Rajendra Ram ##### Doss cannot be.:ome the Mohunt arcording w the other equally customary rule that only a North-India Brahmin can be the Molmnt of this Mutt. In our opinion the rule of custom should prevail in all cases and if any aberrations have to be corrected suet. correction must take us in the dire.:tion of re-establishing the rule of custom. To that extent the principle laid down in the case of _Annasami Pillai_ _and_ _Ors._ v. _Ramakrishna_ _Mudaliar_ _and_ _Anr._ _(supra)_ is a correct principle and has to be followed. That, however, does not resolve the difficulty in this case. Assuming that Chetan DOss was not a validly appointed Mohunt so that his period of office is to be ignored, the question still arises whether in making a reversiOil to **the** custo:nary rule of succession to the office of a mohunt such reversion is to operate from the point where Chetan Doss' period ##### ended or from the point when this had commenced. It is only an accident that in this case Chetan Doss had a very brief rcriod of office so that or. _his_ death it was at ieast possible to find on~ surviving disciple of the Mohunt who held the office bei'ore Chetan Doss succeeded him. In most cases if there is a break in the customary rule it may not at all be possible to revert back to the customary succession if one has to start from the point where the original break h1d commenced. In such cases even if it may be possible to revert to the~customary practice, it may not be possible to go back to the point \vhere the customary line of succe~ion had its original break. Thus, in this case though ot has been possible to trace at least one person who was a discip!e of Narayan Doss after whcse death the customary practice was broken and the office handed over to an alleged interloper" even this lone survivor of the original line of succession is not a person who is competent to become the Mohunt by the immemorial custom of the Mutt. Therefore, it is not possible at all to re-establish the customary line of succession if one treats the period of Chetan ##### Doss' mohuntship as altogether non-existing. If we have to revert to the custom of the Mutt we cannot do so from the point of time when Narayan Doss died and Ch~tan Doss became the Mohunt. We have to do so from the point when Chetan Doss died. After all, Chetan Doss has been unquestionably the Mohunt of the Mutt. It is true tf.at on a subsequent re-examination of the whole matter. doubts have been c~st on his title for !he office but bv commo11 accn,tancv of the Chelas of the ~iutt he had becomt: the Mohunt and had remained a m.ohunt till his death. Ignoring the fact that A **B** ### c **D** E F G **H** A B ### c D _E_ RAM DOSS v. DEVENDRA DOSS _(Mukherjea,_ _J.)_ 919 he was really the Mohunt of this Mutt for a specific period does not help us re-establish the rule of custom rrevailing in this Mutt. The only possible way in which the old custom may be ·r~-es•a­ bl!shed is by making a fresh start from the point of the dealh of Chetan Doss and that can only be done by allowing Devendra Do.;s to be the :Mohunt. The High Court has come to a cleat fa1ding that Devendra Doss is a North-Indian Brahmin and is r',erefore fit to hold the office ofa mohunt according to the custom of this Mutt. The High Court has also found that he was thi; senior-most disciple of Chelan Doss who had been the reigning mohur.t upto the point of time when the dispute regardm!: ##### succession arose. If Rajendra Ram Doss' right to become \h~ ;,fohunt ~ rejected on the ground that Chelan Doss was perhaps an interloper the whole line of succession will be broken beyond repair or redemption, for, once it is accepted that Rajendra Ram Doss is not a· North-Indian Brahmin there is no other Jiving disciple of Narayan Doss who could restore the original line of succession. In our view it is not open to us to Jay down a new rule of succession or to alter the rule af succession completely. The only way we can save the custom is by acceoting something as fact which has so far been accepted by everybody concerned with the Mutt as a fact and which cannot any longer be undone v:ithont demolishing Rltogether the custom of the Mutt. In these circumstances we hold that Devendra Doss is entitled to succeed Chetan Doss as his senior-most disciple en the strength of the immemorial custom of this Mutt. In the view that we take of this matter the appeal fails and is dismissed. In the peculiar circumstances of this case we make no orders to costs. All the stay orders passed in this matter by this Court shall sta,1d vacated. tG.C. _Appeal_ _dismissed._