# BRAHMA NAND PURI v. NEKIPURI

- **Citation:** [1965] 2 S.C.R. 233
- **Court:** Supreme Court of India
- **Decided:** 1964-11-24
- **Bench:** K. Subba Rao, Raghubar Dayal, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brahma-nand-puri-v-nekipuri-3326
- **Pages:** 9

## Headnote

Hindu Religious Institution-Vera of Sanyosi Sadhus in Punjab-Succession as Mahant-Whether general law or CllStom in existence to entitle
Che/a or Gurbhai to succed without appointment or election by fraternity.
Upon the death of the last Malzant of a Dera of Sanya.<i Sadhus in·
Punjab, the respondent, claiming to be the Che/a of the deceased and
therefore having a preferential title, entered into possession of certain properties basing his title thereto on an appointment made to the office by the
Bhekh and the geople of the village. The appellant also claimed the same
properties as the successor of the deceased Mahant and brought a suit
for a decree for possession of the properties belonging to the Dera; he
claimed title on the basis that as Gurbhai of the last Mahant, he was entitled to the Gadi and that he, and not the respondent, had been appointed to
it by the people of the village and the Bhekh; he further claimed in the
alternative, that·even if it was found that he was not so appointed, according to the custom regarding succession of the Dera and Rewaj-i-am of
Deros, he was in any event entitled to become Mah ant as he was the
Gurbhai of the deceased Mahant.
The trial court found that the respondent was not the Che/a of the
deceased Mahant and that there was no evidence that he was appointed
Mahant; on \he other band the appellant was also held not to have been
appointed.
However, without recording a finding on the custom set up
by the appellant, the trial court held that under the law in Punjab, in the
absence of a Che/a, a Gurbhai was entitled to succeed to the Gadi apart
from any question of appointment by the Bhekh, and on lhis reasoning,
decreed the appellant's swt.
The respondent's first appeal to the Additional Sessions Judge was
allowed but a Single Bench of the High Court reversed that decision.
Thereafter, in the respondent's Letters Patent Appeal, although the Di\ision Bench concurred with the · single Bench on the <>ther issues, the
appeal was allowed on the ground that the. custom set up in the plaint
that a Gurbhai could succeed without an appoinunent of the Bhekh bad
not been made out.
HELD: (i) There is no general law applicable to religious institutions
in the Punjab and each institution mU£t be deemed to be regulated by ita
own custom and practice.
Therefore, the appellant could not succeed
as Mahanl without reference to an appointment by the Bhekh or the
fraternity unless he could establish a custom which entitled him to succeed
by virtue of being a Gurbhai.
(238 D-E; 239 CJ
Rattigans' Digest of Customary law : Jiwan Das v. Hira Das, A.l.R.
1937 Lah. 311 and Sital Das v. Sant Ram; A.I.R. 1954 S.C. 606, referred
ID.
On the basis of the evidence before the trial court the appellant had not
established the custom put forward by him.
(240 G]
L3Sup./65-16
234
SUPREME COURT RBPORTS
(1965] 2 S.C.R.
(ii) The appellant's suit being one of ejectment be bad to succeed
A
or fail on the title that he established; if he could not succeed on the
strength of his title, his suit must fail notwithstanding that the defendant
in possession had no title to the property. [23 6 H]
.
Mukherjea's Hindu Law of Religious and Charitable Trust, 2nd Edition,
p. 317, referred.
CIVIL APPELLATE JmUSDICTION: Civil Appeal No. 813 of B
1962.
Appeal from the judgment and decree dated July 13, 1960, of
the Punjab High Court in L.P. Appeal No. 58 of 1958.
N. C. Chatter;ee, V. S. Sawhney, S.S. Khanduia and Ganpat
Rai, for the appellant.
C
Naunit Lal, for the respondent no. l(a).

## Text

'
A
B
.c
D
E
F
G
H
BRAHMA NAND PURI
v.
NEKIPURI
November 24, 1964
[K. SUBBA RAO, RAGHUBAR DAYAL AND N. RAJAGOPALA
AYYANGAR, JJ.J
Hindu Religious Institution-Vera of Sanyosi Sadhus in Punjab-Succession as Mahant-Whether general law or CllStom in existence to entitle
Che/a or Gurbhai to succed without appointment or election by fraternity.
Upon the death of the last Malzant of a Dera of Sanya.<i Sadhus in·
Punjab, the respondent, claiming to be the Che/a of the deceased and
therefore having a preferential title, entered into possession of certain properties basing his title thereto on an appointment made to the office by the
Bhekh and the geople of the village. The appellant also claimed the same
properties as the successor of the deceased Mahant and brought a suit
for a decree for possession of the properties belonging to the Dera; he
claimed title on the basis that as Gurbhai of the last Mahant, he was entitled to the Gadi and that he, and not the respondent, had been appointed to
it by the people of the village and the Bhekh; he further claimed in the
alternative, that·even if it was found that he was not so appointed, according to the custom regarding succession of the Dera and Rewaj-i-am of
Deros, he was in any event entitled to become Mah ant as he was the
Gurbhai of the deceased Mahant.
The trial court found that the respondent was not the Che/a of the
deceased Mahant and that there was no evidence that he was appointed
Mahant; on \he other band the appellant was also held not to have been
appointed.
However, without recording a finding on the custom set up
by the appellant, the trial court held that under the law in Punjab, in the
absence of a Che/a, a Gurbhai was entitled to succeed to the Gadi apart
from any question of appointment by the Bhekh, and on lhis reasoning,
decreed the appellant's swt.
The respondent's first appeal to the Additional Sessions Judge was
allowed but a Single Bench of the High Court reversed that decision.
Thereafter, in the respondent's Letters Patent Appeal, although the Di\ision Bench concurred with the · single Bench on the <>ther issues, the
appeal was allowed on the ground that the. custom set up in the plaint
that a Gurbhai could succeed without an appoinunent of the Bhekh bad
not been made out.
HELD: (i) There is no general law applicable to religious institutions
in the Punjab and each institution mU£t be deemed to be regulated by ita
own custom and practice.
Therefore, the appellant could not succeed
as Mahanl without reference to an appointment by the Bhekh or the
fraternity unless he could establish a custom which entitled him to succeed
by virtue of being a Gurbhai.
(238 D-E; 239 CJ
Rattigans' Digest of Customary law : Jiwan Das v. Hira Das, A.l.R.
1937 Lah. 311 and Sital Das v. Sant Ram; A.I.R. 1954 S.C. 606, referred
ID.
On the basis of the evidence before the trial court the appellant had not
established the custom put forward by him.
(240 G]
L3Sup./65-16
234
SUPREME COURT RBPORTS
(1965] 2 S.C.R.
(ii) The appellant's suit being one of ejectment be bad to succeed
A
or fail on the title that he established; if he could not succeed on the
strength of his title, his suit must fail notwithstanding that the defendant
in possession had no title to the property. [23 6 H]
.
Mukherjea's Hindu Law of Religious and Charitable Trust, 2nd Edition,
p. 317, referred.
CIVIL APPELLATE JmUSDICTION: Civil Appeal No. 813 of B
1962.
Appeal from the judgment and decree dated July 13, 1960, of
the Punjab High Court in L.P. Appeal No. 58 of 1958.
N. C. Chatter;ee, V. S. Sawhney, S.S. Khanduia and Ganpat
Rai, for the appellant.
C
Naunit Lal, for the respondent no. l(a).
The Judgment of the Court was delivered by
Ayyangar. J. The tenability of the appellant's claim to poss~
sion of certain properties belonging to the Dera of Sanyasi Sadhm
D
in Mauza Kharak Tahsil Hansi, District Hissar in Punjab is the
subject-matter of this appeal which is before us on a certificate of
fitness granted by the High Court of Punjab.
The appellant claimed the properties as the successor of the
last Mahant of the Dera-Kishan Puri who died on February 15,
•
1951.
The fortunes of the litigation started by the appellant have
greatly fluctuated.
His suit was decreed by the learned trial
Judge, was dismissed by the first appellate Court, was again decreed
by a learned Single Judge of the Punjab High Court on second
appeal but this judgment has again been reversed on Letters
Patent appeal and the suit directed to be dismissed.
On a certir
ficate of fitness granted by the High Court the matter is now
before us.
The last Mahant of this Dera-Kishan Puri died on February
15, 1951. Immediately on his death disputes seem to have arisen
as regards the succession to the Dera. Neki Puri-the original
respondent in this appeal (now deceased) claiming to be a Chela
G
of the deceased Mahant appears to have entered into possession of
the properties belonging to the Dera basing his title thereto on an
appointment made to the office by the Bhekh and the people of
the village.
The appellant nevertheless claiming to be in possession of the property as the successor of the deceased Kishan Puri by
virtue of a title as the Gurbhai of the deceased, brought a suit for a
H
declaration regarding his title and for an injunction restraining
Neki Puri from interfering with his possession.
Neki Puri, as
I
BRAHMA NAND PURI v. NEKI PURI (Ayyangar, /.)
235
A stated earlier, claimed that he was in possession of the propertie1
and asserted a title to such possession by being a Chela who had
been appointed by the Bhekh.
An issue was raised in the suit as
to whether it was the plaintiff or the defendant who was in posscs5ion of the properties and on a finding recorded that Neki Puri
was in possession, the suit for a mere declaration and injunction
B
was held to be not maintainable and was, therefore, dismissed.
c
Incidentally, however, evidence was recorded on an issue as to
whether Neki Puri was a Chela of Kishan Puri-the last Mahant
and a finding was recorded on this question adverse to the claim
of Neki Puri.
An appeal against this judg'ment was dismissed and ·
that decree has now become final.
The suit for declaration and injunction having been dismissed,
Brahma Nand Puri-the appellant-brought the suit out of which
this appeal arises, in the Civil Court at Hissar for a decree for
possession of the properties movable and immovable belonging
to the Dera.
The suit being on the basis of the plaintiff's title,
D this was formulated thus :
E
F
G
"5. According to custom regarding succession of the
Dera and the Riwaj-i-Am of Deras the plaintiff being
Gurbhai was entitled to Gaddi, as he is the eldest Chela
of Shanker Puri and the people of the village and the
Bhekh appointed him as Mahant after performing all the
ceremonies on the 17th day of the death of Shri Kishan
Puri and made him occupy the Gaddi of dera of Kharak."
An alternative basis for the title was also put forward in paragraph 8 in these terms :
"8. If for any reason it is held that after the death of
Shri Kishan Puri, the plaintiff was not appointed as
Mahan! of the Dera, even then according to the custom
regarding succession of the Dera and Riwaj-i-Am, the
plaintiff is entitled to become Mahant of the Dera as he
is the Gurbhai of Kishan Puri deceased.
It was held in
the previous case that according to the Riwaj, in the
absence of a Chela his (deceased Mahant's) Gurbhai
becomes Mahant of a Dera."
In the Written Statement that was filed by Neki Puri two defences
were raised : (1) that Neki l'uri was a Chela and he had been
appointed to succeed Kishan Puri by the Bhekh and other villagers.
H
In other words, he put forward a preferential title based on
Chelaship fdllowed by an appointment by the Bhekh and others.,
(2) Alternatively, while admitting that Brahma Nand Puri was
236
SUPREME COu.t<T REPORTS
[1965] 2 S.C.R.
a Gurbhai of the deceased Mahant, he denied that he had been A
appointed by the Bhekh and also urged that there was no custom
by which a Gurbhai who had not been appointed by the Bhekh
was entitled to succeed as Mahant merely by reason of his being
a Gurbhai. On these pleadings 4 principal questions (omitting
certain others which are not relevant in the present context) arose
for trial : ( 1) Was Neki Puri a Chela of the deceased Kishan B
Puri?, (2) Was Neki Puri appointed by the Bhekh? It was
admitted by Brahma Nand Puri that a Chela had a right superior
to a Gurbhai and therefore if these two issues were found in favour
of Neki Puri the plaintiff's suit had admittedly to fail., (3) Was
the plaintiff appointed by the Bhekh ? No serious attempt was
made to establish that the plaintiff had been appointed by the C
Bhekh and hence the 4th question that ai:ose was whether there
was a custom by which a Gurbhai could succeed to the Mahantship of this institution without an appointment by the Bhekh as
pleaded in paragraph 8 of the plaint extracted earlier.
On these
four matters the learned trial Judge recorded· the following findD
ings : (1) that Neki Puri had not been proved to be the Chela of
the last Mahant., (2) No definite finding was recorded on the second
point but the trial Jndge was of the opinion that there was no
proof that the Bhekh could appoint as Mahant a person who was
not either a Cheia or a Gurbhai or that they actually did so in the
present case., (3) A definite finding was recorded that the plaintiff E
was not appointed by the Bhekh., ( 4) Without recording a finding
on the custom set up by the plaintiff in para 8 of the plaint the
learned trial Judge ·held that under the law in the Punjab in the
absence of a Chela, a Gurbhai was entitled to succeed to the Gaddi
apart from any question of appointment by the Bhekh and on this
reasoning decree_d the plaintiff's suit.
F
The defendant went up in appeal to the Additional Sessions
Judge. The appellate Court reversed the finding of the trial Judge
on the issue as to whether Neki Puri was a Chela of the deceased
Mahant and held that he was.
/!i. definite finding was also recorded on the basis of the evidence l::d by the defence that Neki Puri G
had been appointed to succeed the deceased Mahant by the Bhekh
and the villagers.
As admittedly a Chela had a superior title to
a Gurbhai in the matter of succession the learned District Judge
allowed the appeal of the defendant-Neki Puri and directed the
dismissal of the suit.
The plaintiff took the matter to the High Court by way of H
second appeal. The learned Single Judge who heard the appeal in
his tum reversed the finding of the first appellate Court on the issue
BRAHMA NAND PURI v. NEKI PURI (Ayyangar, J.)
237
A ·regarding Neki Puri being a Chela of the deceased Kishan Puri.
He considered that the finding on this matter by the Additional
Sessions Judge was vitiated by serious errors of law and misappreciation of facts.
Having thus put aside the claim of Neki Puri to
succeed by holding ,that he was not a Chela, the learned Judge
upheld the plaintiff's claim on the ground that a Gurbhai was
B entitled to succeed to the Gaddi even if he had not been appointed by the Bhekh.
He, therefore, decreed the suit of the plaintiff.
Neki Puri then in his tum took the matter before a Division Bench
by a Letters Patent appeal.
The learned Judges concurred with
the learned Single Judge on the issue as to whether Neki Puri wu
a Chela or not.
They agreed with him that the first appellate
C Court had committed serious errors in its reasoning in finding
that Neki Puri had established the claim to be the Chela of Kishan
Puri and affirmed the finding of the learned trial Judge in that
regard. Dealing next with the title of the plaintiff to the Gaddi,
the learned Judges held that the custom set up in paragraph 8 of
0
the plaint that Gurbhai could succeed without an appointment by
the Bhekh had not been made out on the evidence and on this
reasoning they allowed the appeal and directed the dismissal of
the suit.
It is the correctness of this decision that is challenged
before us by the appellant.
E
Two points were urged before us by Mr. Chatterjee-learned
Counsel for the appellant.
The first was that under the law
applicable to Deras in the Punjab that is to say apart from any
special custom, a Gurbhai was entitled to succeed to the Dera
even without an appointment by the Bhekh or fraternity, (2) that
even if that was not the law and a custom was required to sustain
F that plea, such a custom had been established by the evidence
adduced by the appellant in the present case.
Pausing here, we might mention that Mr. Chatterjee referred
us to the circumstance that during the pendency of the appeal in
this Court Neki Puri had died and that certain others who, he
G stated, had even less claims to a Mahantship were in possession
of the property and that seeing that the appellant was admittedly a
Gurbhai it would be most inappropriate that his rights should be
overlooked and a stranger permitted to squat on the property. We
consider this submission is devoid of force.
The plaintiff's suit
being one for ejectment he has to succeed or fail on the title that
8
he establishes and if he cannot succeed on the strength of his title
his suit must fail notwithstanding that the defendant in possession
has no title to the property, assuming learned Counsel is right in
238
SUPREME COURT REPORTS
(I 965) 2 S.C.R.
that submission. As pointed out in Mukherjea's Hindu Law ol A
Religious and Charitable Trust, Second Edn., page 317 :
"The party who lays claim to the office of the Mohunt
on the strength of any such usage must establish it affirmatively by proper legal evidence. The fact that the
defendant is a trespasser would not entitle 1 !:e piaintiff
to succeed even though he be a disciple of the last
Mohunt, unless he succeeds in proving the particular
usage under which succession takes place in the particular institution."
·
We, therefore, dismiss this aspect of the case from consideration.
Taking the first point urged by Mr. Chatterjee, we do not consider that learned Counsel is justified in his submission that under
the law as obtains in the Punjab a Gurbhai is entitled to succeed
without .refe~enc~ to an appointment by the Bhekh or the fraternity.'
In. ~attig_an ~ D.1gest. of Customary Law the position as regards
relig10us mstltutions m the Punjab is thus stated :
"There is no general law applicable to religious
institutions in this Province, and each institution must
be deemed to be regulated by its own custom and practice.
There are, however, certain broad propositions
which judicial decisions have shown to have received
very general recognition, and these propositions are
embodied in the following paragraphs :-
84. The members of such institutions are governed
exclusively by the customs and usages of the particular
institution to which they belong.
85. The office of Mahan! is usually elective and not
hereditary.
But a Mahant may nominate a successor
subject to 'confirmation by his fraternity."
B
c
D
E
F
From paragraph 85 it would follow that the office of Maham being
'Usually elective and not hereditary, anyone who lays claims to tho
G
office on the basis of a hereditary title resting oμ Chelaship simplicitor or Gurbhaiship simplicitor must establish it.
(S~e also
/iwan D,7.,. v. Hira Das).' Though, no doubt, the usage of one
institution is no guide to that of another, it may be mentioned that
in regard to the succession of the Maha~tship of. a '.h~kur~w~ra
belongin£ to the Ram Kabir Sect of Hmdu Ba1rag1s m dtstnct
H
Jullundu~ in the Punjab this Court held in Sita! Das v. Sant Ram•
(I) A.LR. 1937 Lab. 311.
(2) A.I.R. 1954 S.C. 6G
,
•.
BRAHMA NAND PURI v. NEKI PURI (Ayyangar, /.)
239
A that the usage required an appointment by the fraternity before
a person could become a Mahant.
On the basis, therefore, of the
passage in Rattigan's Digest, which we have extracted, it appears
to us that the first of the submissions made by Mr. Chatterjee
cannot be upheld. In fact, the tenor of para 5 of the plaint we have
cittracted earlier itself shows a consciousness on the part of the
•
plaintiff himself that he considered that an appointment by the
Bhekh was necessary to clothe him with the title to the Gaddi
besides his status as a Gurbhai.
No doubt the plaintiff was a
Gurbhai but he had not established that he had been appointed·
by the Bhekh or fraternity. In the absence of such appointment
under the law and apart from any special custom pertaining to this
c institution the appellant could claim no title to the Gaddi, by his
being a Gurbhai.
This takes us to the second point urged by Mr. Chatterjee that
on the evidence the plaintiff had made o'ut the special custom pertaining to this institution that no appointment by the Bhekh was
D necessary before a Chela or Gurbhai could succeed to the Gaddi.
E
F
G
H
We have been taken through the entire evidence in the case. In
the first place, there are no documents or anything in writing in
support of the custom and the matter depends entirely on the testimony of witnesses produced before the Court.
P. W. 4 who claimed to be a Bhekh of this Dera stated in chief examination :
"According to the custom of our Bhekh if a Mahant
died without leaving a Chela his Gurbhai became the
successor. If however there is Chela he is the
successor."
In cross examination he stated :
ovrhe custom of succession stated by me above is
written nowhere : it is followed by us."
and then he continued :
"In village Bata there is a Sanyasi Dera.
There also
Prabhu Puri Chela was not found to be a good man and
Sund~r Puri Gurbhai of the last Mahant was installc~.
In Guna there is a Sanyasi Dera.
Lac~hman G1~
Sanyasi died without leaving a Chela. His Gurbha1
Phag Gir succeeded him to the Gaddi."
It would be seen that there was nothing specific in his ~vidence
about the absence of an appointment b?' the Bhe~h. m those
. tan es which is the special custom which the plamtlff sought
~~s pr:ve by this evidence.
p .W. 11 is another witness to whose
240
SUPRBMB COURT REPORTS
(1965) 2 S.C.R.
evidence reference was made. He stated in his chief examiA
nation:
"According to the custom of the Bhekh if a Mahant
leaves no Chela, his Gurbhai succeeds to the Gaddi."
In cross examination he stated :
"The custom of succession which I have deposed to
above is at par with the General Hindu Customary
Law .... There might be many instances. But I cannot
recall to my mind any such instance now."
B
P.W. 13 belongs to a different Dera but he claimed that the Dera
at Kharak was similar to his institution and stated in his chief c
examination :
"Amongst us if a Sadhu does not leave a Chela, the
Gaddi goes to bis Gurbhai.
There is an instance in the
Gurdwara of Kosli near my Dera of a Gurbhai succeed·
ing a Mahant in the absence of a Chela.
There is an·
other such instance of Dera at Nangri in Rajasthan."
D
The evidence of P.W. 16 was similar:
"My Guru succeeded to the Gaddi as Gurbhai of the last
Mahant."
Evidence of P.Ws. 17 and 18 was identical with that of the
E
witnesses who preeeded them :
"According to custom of the Bhekh if a Mahant dies
without leaving a Chela bis Gurbhai succeeds."
It would be seen from this evidence : ( 1) that it is lacking in
-
particulars as regards the instances, and ( 2) there is nothing stated F
•
as to whether even in the instances referred to, there was no
recognition, appointment or confirmation by the Bhekh which
according to Rattigan is part of the customary law of the Punjab
as the source of title for the Mahantsbip.
We are, therefore,
not prepared to hold that the appellant has established the custom
which he put forward in paragraph 8 of bis plaint in derogation G
of the ordinary law viz., that without an appointment by the Bhekh
or fraternity a Chela or, in his absence, a Gurbhai succeeds to
the headship of a Dera. The plaintiff's suit was, therefore, in our
opinion, properly dismissed.
Mr. Naunit Lal, learned counsel for the respondent urged that
the learned Single Judge was in error in reversing the finding of
H
the first appellate Court that Neki Puri had proved that he was z.
Chela of Kishan Puri-the deceased Mahant. It might be noticed
BRAHMA NAND PURI v. NEJtl PURI (Ayyangar, /.)
241
A that the Division Bench had concurred in the views expressed by
the learned Single Judge as regards the defects in the judgment
of the first appellate Court on its findin~ on this issue. Learned
Counsel submitted that the learned Single Judge fell into serious
errors in interfering with a finding of fact Though we are satisfied
that certain portions of the judgment of the learned Single Judge
II
had suffered from errors, we do not purpose to examine this question as the same is wholly unnecessary for the disposal of this
appeal. It is only in the event of our accepting the submissions of
Mr. Chatterjee that the correctness of the reversal of the finding
on the Chelaship of Neki Puri would have become material. Jn
C the view that we have expressed as regards the appellant's title to·
the Gaddi we do not consider it necessary or proper to discuss
what, in fact, is merely an academic question.
The result is, the appeal fails and is dismissed with costs.
Appeal dismissed.