Avasarala Kondol Row And Anr. vs Iswara Sanyasi Swamulavaru Alias ...

on 13 February, 1917

Madras High Court Avasarala Kondol Row And Anr. vs Iswara Sanyasi Swamulavaru Alias ... on 13 February, 1917 Equivalent citations: 40 Ind Cas 535 Author: S Aiyangar Bench: A Rahim, S Aiyangar JUDGMENT Srinivasa Aiyangar, J. 1. This is an appeal by the plaintiffs against the decree of the Subordinate Judge of Cocanada dismissing their suit to recover possession of the immoveable properties belonging to the 1st defendant, from him and his alienees. There are two plaintiffs, but as the 2nd is only an assignee from the 1st and as it is the right of the 1st plaintiff that is in question in the suit, I shall hereafter refer to the 1st plaintiff as the plaintiff. The claim is as the universal legatee, heir and successor of a living person the 1st defendant. According to the plaintiff the 1st defendant his uncle, made his Will on the 20th December 1905 at Benares by which he bequeathed all his immoveable properties--they are the suit properties--to the plaintiff, constituted him his heir and successor, and a few days after, became a Sanyasi or entered the fourth Asrama prescribed by the Sastras, became dead to the world and its concerns, and the plaintiff, therefore, became the owner of his properties as if the 1st defendant had died on the day he became Sanyasi. This remarkable claimfor this is the first instance to my knowledge of a claim to recover possession from a living person of his properties as his heir or legatee which involves the fiction of civil death requires to be made out in the clearest possible manner. The plaintiff and the 1st defendant are Telugu Brahmins of the Godavari District and belong to the sect called Golakonda Vyaparies who though they wear namams and follow some of the practices of Sri Vaishnavas, in several other matters apparently follow the practices of Smarthas. Several interesting questions were argued at the hearing of this appeal, as to the acts to be done and the ceremonies to be performed by a Brahman before he can become a Sanyasi as to the effect of that status on legal rights, as to the possibility of a reversion from or change of that status, and as to how far British Indian Courts are bound or entitled to recognise any such limited or inferior civil status; but in the view I take of the facts it is scarcely necessary to decide most of the questions so argued. 2. It must be remembered that there are a large number of sects with their peculiar rites, mode of initiation and practices who though in a general sense may be termed ascetics cannot come under the category of those who have entered the fourth order (Asrama) in the ideal of life prescribed for the Brahman by the Dharma Sastras. For example, in a passage cited in Sarkar Sastri's Hindu Law from Maha Nirvana Tantra, it is said that in this Kali age there are five castes (varnas) i.e., besides the well-known four castes, a fifth caste comprising all other beings, that Sanyasam according to Vedic rites does not exist (***) and that all the above five castes can become Avadhutha Sanyasis according to the Saiva ritual. As regards ascetics of this class, it is impossible to apply the special texts in the Smritis or to hold that they are divested of their property or become incapable of holding any or that the special rules of inheritance prescribed for Vanaprastas (hermits) yathis (ascetics) and Brahmacharies (perpetual students) govern succession to their property on their death. It has been held in this Court that as a Sudra cannot become a yathi or Sanyasi according to the Smritis or the Dharma Sastras, his property on his death devolves on his natural heirs, though there can be no doubt that a Sudra is ordained as an ascetic according to the Saiva Agamas. So also in Bengal the rule of inheritance applicable to yathis is not applied to Bairagis who apparently may be of any caste. In Mr. Oman's Book on 'Ascetics etc'., and Dr. Bhatta-charya's Book on Hindu Castes and Tribes' are described a considerable number of orders of ascetics who are not governed by the rules prescribed in Smritis or by Nibandakars whom for convenience I may call heretical sects; and so far as they are concerned, in the absence of any special custom, there is no reason to treat them as of inferior status for the purposes of civil law. Unless, therefore, the plaintiff proves that the 1st defendant became a Sanyasi according to the orthodox rites and ceremonies I shall show later on that it is essential for such a Sanyasam that there should be an actual gift or an actual relinquishment or abandonment of all worldly possessions the plaintiff cannot succeed, even though he may be able to prove that the 1st defendant wore coloured clothes or shaved his head or acquired certain external symbols of Sanyasam; for
Indian Kanoon - http://indiankanoon.org/doc/1153780/ 1

Avasarala Kondol Row And Anr. vs Iswara Sanyasi Swamulavaru Alias ... on 13 February, 1917

some or all of these are adopted also by the heretical sects. 3. The 1st defendant lost his wife and children at the same time in an accident when he was young and did not marry again. He was naturally much affected by such a calamity, turned to his religion for consolation, had puranas read and expounded to him, and was often going on pilgrimage to holy places. In the latter part of 1905 he went to Benares with the plaintiff and stayed in the house of V. Narayana Rao (plaintiff's 1st witness) in whose house he had stayed for months on a previous occasion. While he was there, on the 20th December 1905 he made the Will, Exhibit A, under which the plaintiff claims as legatee, got it registered the next day at his residence as he was ill, and a day or two later, it is said, became an ascetic and had his name changed to Iswara Sanyasi in token of his having entered the holy order of Sanyasis. The plaintiff who evidently knows that a person about to become a Sanyasi should give up his property, says, that the Will, Exhibit A, was executed by the 1st defendant as a (preliminary to his Sanyasam and with the intention of divesting himself of his property. If this was the intention of the 1st defendant, he not merely managed to conceal it but manifested a contrary intention; for in his Will there is no reference to any impending Sanyasam at all but a direction that the legatee should after the testator's deathhe obviously refers to his natural deathperform his death ceremonies and take his property as his heir and successor. The reference to the death ceremonies is significant, as there are none such to be performed by the relations of a Sanyasi after his natural death. There is one other matter in connection with this Will which also shows that the 1st defendant had no idea of relinquishing his property during his natural life. The Will after registration was asked by the testator to be delivered to one Ram Narain Singh, and acquaintance of his, and not to the plaintiff, and although the plaintiff stayed with the 1st defendant for over a month at Benares after the date of the alleged Sanyasam the 1st defendant never gave the Will to the plaintiff and never intended to give it to him. The plaintiff, however, obtained the Will long after, from the Singh against the wish of the 1st defendant. The conduct of the plaintiff and the 1st defendant after the alleged Sanyasam makes it difficult to believe that the 1st defendant became a Sanyasi at all as alleged by the plaintiff. On the 13th January 1906 (i.e.,) within a few days after the 1st defendant is said to have become an ascetic, he made another Will, or rather a codicil, leaving to others, a portion of the properties devised to the plaintiff by his previous Will (Exhibit VIII). On the 5th February 1906 he again made a third Will by which he distributed his property to his three nephews i.e., the plaintiff, his brother, the 11th defendant and another brother Venkat Rao now dead, the father of defendants Nos. 13 and 14 (Exhibit X). These were executed at Benares while the plaintiff was with him, and the 1st defendant describes himself in his usual name and as the son of his natural father which he would not have done if he had become an ascetic and had assumed the name of Iswara Sanyasi. As a matter of fact, the 1st defendant described himself and was addressed by relations and friends including some of the important, witnesses for the plaintiff by his ordinary name Avasarala Kamarazu, and the curious compound Iswara Sanyasi with its variant Jswaranandaswami and Iswara Sanyasi-Swami appears for the first time in the proceedings in this suit. The 1st defendant left Benares for his native place after executing Exhibit X and made another Will (Exhibit ]) on the 22nd February 1906 at Pittapnr and has been dealing with his property over since as owner, and there can be no doubt he has been living like a gahasta or a house holder. He denies that he ever became a Sanyasi or behaved as such. That is so far as the 1st defendant is concerned. 4. The conduct of the plaintiff is, however, much more important. On October 3, 1906, long after the 1st defendant had begun to deal with his property as owner, he and the 11th defendant claiming as legatees under the Will, dated the 5th February 1906, made a written demand of possession of certain properties from 3rd persons who held them under the 1st defendant as tenants, or otherwise by transfers subsequent to the 5th February. 5. In these notices, one of which is produced and marked as Exhibit XI in the case, the Plaintiff and his brother, the 11th defendant stated that the 1st defendant became a Sanyasi after the 5th February and thereafter ceased to have any interest in his properties and on that ground challenged the title of the persons in possession. That statement if unexplained is obviously fatal to the plaintiff's present claim and the only explanation which he gives is that he never made that statement, but that his brother fraudulently filled up a black paper in which he obtained the plaintiff's signature. Unfortunately for the plaintiff, this is proved to be
Indian Kanoon - http://indiankanoon.org/doc/1153780/ 2

Avasarala Kondol Row And Anr. vs Iswara Sanyasi Swamulavaru Alias ... on 13 February, 1917

untrue, for the plaintiff is proved to have been well aware of the draft of this very notice (Exhibits IX and IX A) The 11th defendant who equally with the Plaintiff insists that the 1st defendant became a Sanyasi denies that he ever filled up a blank paper and there can be no doubt that he is speaking the truth in this matter. Further the plaintiff and the 11th defendent long after this notice on March 10th, 1907, obtained a muchilika from a tenant for some of the lands of the 1st defendant and the plaintiff does not explain this transaction either, beyond stating that his brother fraudulently obtained this also with out his knowledge. Finally the plaintiff makes this remarkable statement, namely, that he knew in October 1906 that his brother had made false recitals in the notice issued in his name the 11the defendant apparently was quite frank about it and told the plaintiff that he inserted those false statements to obtain a share of the 1st defendant apparently was quite frank about it and told the plaintiff that he inserted those false statements to obtain a share of the 1st defendant's properties which wholly belonged to the plaintiff--yet be thought and was advised by a leading pleader that those statements were not pre-judicial to his interest, so much so that he took no steps to correct them and had sufficient confidence in his brother to allow him to take a muchilika also jointly in the names of both. On February 23, 1909, only three days before the plaint in this suit was filed, after he had made, tip his mind to claim the Whole of the properties of the 1st defendant as his sole legatee tinder the Will Exhibit A, the 1st plaintiff sold a half of the suit properties to the 2nd plaintiff and in the sale-deed, in setting out his title, fixed the same day the 21st December 1905 for the Sanyasam and the Will. Evidently even this version did not suit him as probably the Sub-Registrar who registered the Will, who saw the 1st defendant at his residence on that day between 5 and 6 P.M., may be in a position to contradict the story of Sanyasam on that day, any how the plaintiff is wholly unable to explain how this date came to be fixed in the sale-deed as the date of the Sanyasam. In his re-examination by his own Pleader he says this ''Exhibit E (i.e.,) the sale is in my own handwriting. I do not remember if a draft of it was first prepared. The recital in Exhibit E to the effect that the taking of Sanyasam and the execution of the Will Exhibit A took place at the same time was a mistake. I cannot say how it arose." In his plaint he fixed no date but paragraph 5 of the plaint reads as if the making of the Will and the Sanyasam were simultaneous. Even now the actual date is not fixed but it was said for the first time in March 1910 when the plaintiff's witnesses were examined in Benares that it took place on some day between the 23rd and 26th December 1905. These unexplained variations in the date cast a strong suspicion or the truth of the plaintiff's case. There are two other transactions in which the plaintiff has taken part to which I shall refer now. He was present when a brother of his (one Lakshmipathi adopted to another family) lent Rs. 1,000 to the 1st defendant on 3rd December 1906 when the 1st defendant, if the plaintiff's present case is true had no property at all, and also when the note was renewed in April 1908. The plaintiff obtained a transfer of this note on behalf of a minor ward of his, after a suit had been filed on the note and conducted that suit on his behalf. When asked to explain his conduct in allowing his brother to lend to a person who had no property and taking ft transfer of the debt he was good enough to suggest that it was no concern of his if his brother foolishly lent to a person who had ho property and denied that he had anything to do with the transfer of the debt or the conduct of the suit. But unfortunately for him he had been examined in the suit On the note and had admitted that he obtained the loan from his brother for his uncle and also that he negotiated and obtained the transfer; and explained that he did so because he and his uncle had settled their differences and that he was to succeed to his uncle after his death. He denies now that there was any such understanding, but he does not explain why if his uncle became an ascetic and he himself became the owner of all his properties, he took part in these transactions. His cross-examination as to these transactions is at pages 93 to 95 of the paper book. A perusal of his evidence as a whole leaves the impression that he has not an honest case. 6. The learned Judge in the Court below, however, accepted as reliable the evidence of: plaintiff's witnesses Nos. 1 to 4 who deposed that the 1st defendant performed certain: ceremonies and went through certain rites by which he became a Sanyasi; and he came to the conclusion that though the 1st defendant did become an ascetic he did not give up or relinquish his property, that he got tired of his Sanyasam very soon and discarded even the Symbols of his order. He evidently thinks that the vacillation of the plaintiff was due to his desire to obtain the co-operation of his brother in any action against his uncle or to settle with his perverse uncle who like a good Sanyasi would not quietly surrender possession of his property and go a begging as he ought. It, therefore, becomes necessary to examine that evidence. Of the fourth witnesses the first three were examined
Indian Kanoon - http://indiankanoon.org/doc/1153780/ 3

Avasarala Kondol Row And Anr. vs Iswara Sanyasi Swamulavaru Alias ... on 13 February, 1917

on commission at Benares and the fourth was examined on the 12th January 1911 and the judgment was not delivered till the end of December 1913. Such a long interval considerably detracts from the value of the opinion of the Trial Judge on the credibility of the witnesses examined before him. * * * * * * * * 7. Assuming, however, that that evidence is true and the witnesses accurately describe what they saw, yet the evidence appears to be insufficient to prove that the 1st defendant entered the holy order of Sanyasis by the performance of the necessary rites and ceremonies prescribed by the Sastras; in particular there is no evidence that the 1st defendant pronounced the presha mantram which is absolutely essential for an orthodox Sanyasam. The ideal ascetic is he who having passed from order to order, having paid the three debts (that to the Rishis to the pittris and to the devas) in the evening of his life tired of the world gives up everything and determines on passing the remainder of his days in holy meditation calmly awaiting his release. (Manu Chapter VI, verses 33 to 37 and 45, Jabala Sruti cited in Apararka's commentary on Yajnavalkya and Yajnavalkya, Chapter III, verse 57). The essence of such Sanyasam, as the word itself imports, is the relinquishment of all property and worldly concerns even of the desire for them. In the Taithireva Upanishad, it is said "not by works, not by sons, not by wealth, but by relinquishing these some obtained immortality." "Getting out of the desire for sons, for wealth, and the world, a Brahmin goes into mendicant state:" (Bikshacharyam Charani) Vajasayena Brahmanam cited in Parasara Madhaviyam, Bombay Sanskrit Series Volume 48, page 152. The rituals to be followed by a person desirous of becoming a Sanyasi are indicated in the Smritics and are set out in detail in the works of the commentators and text book writers (Manu Chapter VI, verses 38, 39, 41, 43; Baudayana If, 10, 17, Parasara Madhaviyam, pages 146 to 178; Dharma Sindhu, pages 363 to 370 Bombay Edition). 8. The postulant for Sanyasam after learning the duties of a Sanyasi should first perform his death ceremonies--this, however, is by some not considered necessary--and the eight sradhas the last of which is his own sradhas; he must then distribute his wealth to his sons and Brahmins reserving enough for the homam (sacrifice in the fire) to be subsequently performed. Then he has to perform Prajapathiyeshti or agneshti and finally viraja homam. These are sacrifices in fire and are purificatory ceromonies. At the end of ceremonies, the postulant has no property at all for even the sacrificial vessels if they are of wood must be burnt in the fire and if they are of metal must be given to the priest. After these are done he takes leave of his sons, and standing in water takes some water in his hand and drops it saying that he has given up desire for sons, wealth, world and everything (Sarva Thyagam). He makes a vow that he will not injure any living being. Finally there is the uttering of the 'Presha Mantram.' The literal meaning of the mantram is 'have been given up by me' (Sanyastham maya). The mantram is to be pronounced low three times, and loud twice and till the mantram is pronounced the man does not become a Sanyasi. The above is common to all Sanyasams, but there is a difference of opinion as to the discarding of the sacred thread, as to the shaving of the tuft and as to the number of sticks in the staff. This is due to certain doctrinal differences which it is unnecessary to deal with for the present purpose beyond saying this; that the discarding of the holy thread which implies the giving up of all the duties prescribed not merely for the order (ashrama), but also for the caste (varna) including the obligatory Sandhyavandanam, is proper only to the highest kind of Sanyasi, Paramahamsa. It is said in the statement of the 11th defendant, that the 1st defendant became a Paramahamsa, but if he did, he should not have resided in a house or in a village; he can enter a village only in the evening for begging for his meals. It is to be observed that the essential feature of Sanyasam is the actual relinquishment of all property and an actual abandonment of all worldly concerns, down to even a desire for them; and it is said in the most emphatic terms that a person adopting Sanyasam, without this abandonment of all desires (bairagyam) goes to fearful Narakam (Dharma Sindhu, page 364). It is clear that in this case the 1st defendant did not abandon or relinquish his property and had no intention of doing so; and there is no evidence that he pronounced the 'Presha Mantram' with out which he cannot become a Sanyasi. The learned Subordinate Judge thinks that without relinquishing his property, a man may become a Sanyasi but the Sanyasam would be useless; and from the verse of Yajnavalkya, which prescribes a rule of inheritance for an ascetic's property, infers that a Sanyasi may possess property. Perhaps it is a question of words but it appears to me that to speak of a Sanyasi retaining his property is a contradiction in terms. The rule as to inheritance is explained by the commentators as applying to the staff, water pot, and sandals of a Sanyasi, which alone is permitted to him (Manu Chapter
Indian Kanoon - http://indiankanoon.org/doc/1153780/ 4

Avasarala Kondol Row And Anr. vs Iswara Sanyasi Swamulavaru Alias ... on 13 February, 1917

VI, verse 41 'Pavitropakitah'). The learned Judge is not right in thinking that an ascetic can make a hoard of things for a day, a month, or six months or a year; for that can be done only by a vanoprastha or hermit. On the other hand it is said in a verse cited in Parasara Madhaviyam (page 184) that a Sanyasi should not even procure an extra staff for future use. Similarly in Gouri Sankar Byas v. Niader Singh 14 M. 316 at p. 320 : 1 M.L.J. 85 : 5 Ind. Dec. (N.S.) 221 it appears to have been held that without actually relinquishing or abandoning his property a man cannot become a Sanyasi. 9. If, however, the first defendant became a Sanyasi, his heirs would take his property and probably his legatee even during his lifetime. In an interesting passage in Pollock and Maitland's 'History of English Law' the learned authors describing the status of a monk say, "A monk or nun cannot acquire or have any proprietary rights. When a man becomes professed in religion," his heir at once inherits from him any land that he has, and, if he has made a Will it takes effect at once as though he were dead. If after this a kinsman of his dies leaving land which according to the ordinary rules of inheritance would descend, he is overlooked as though he were no longer in the land of the living; the inheritance misses him and passes to some more distant relative. The rule is not that what descends to him belongs to the house of which he is an inmate; nothing descends to him for he is already dead. In the eye of ecclesiastical law the monk who became a proprietarius, the monk, that is, who arrogated to himself any proprietary rights on the separate enjoyment of any wealth, committed about as bad an offence as he could commit." Except that the Smriti writers and commentators had no conception of a Will, the above passage accurately represents the status of a Sanyasi under the Hindu Law. It does not seem to be necessary that there should be an actual transfer to, or a reliquishment in favour of any particular person, but one about to become a Sanyasi may simply abandon his property in which case the law will vest it in his heirs. In the Dayabhaga in the very beginning where the author discusses the meaning of the word 'Daya,' and origin of right to property, he points out that not merely by gift, but by death, Sanyasam, etc., the right of the previous owner is lost, and that of the successor begins. The same principle is applied in fixing the time for partition. The author explains that the phrase "the death of the father" does not necessarily mean actual death, but includes Sanyasam, etc., (Stoke's Hindu Law Books, Dayabhaga, Chapter 1, placitum 4 and 31. The Sanskrit word translated as 'retirement' is 'Pravrajita'). See also 2 Colebrooke's Digest, page 197. This appears also to be the opinion of text writers (Strange, pages 164,185, Trevelyan, page 100; Mayne, page 828, Vyavasha Chandrika, page 20). It is, however, unnecessary to pursue this matter further as I have come to the conclusion that the 1st defendant did not enter the fourth order as prescribed in the Dharma Sastras; nor is it necessary to decide any other questions. The appeal must be dismissed with costs. Abdur Rahim, J. 10. I agree.

Indian Kanoon - http://indiankanoon.org/doc/1153780/