BABA CHARAN DASS UDHASIversusMAHANT BASANT DAS BABAJI CHELA BABA LAXMANDAS UDASI SADHU

A                        BABA CHARAN DASS UDHASI
                                          V.

                   MAHANT BASANT DAS BABAJI CHELA
                    BABA LAXMANDAS UDASI SADHU

                                   JULY 14, 2000
B
            [M. JAGANNADHA RAO AND Y.K. SABHARWAL, JJ.]


          Hindu Law:

C         T.N Hindu Religious and Charitable Endowments Act, 1959:

         Section 60-Re/igious head-Appointment of-Power of
    Commissioner-Held: Commissioner is only empowered to take steps for the
    temporary custody and protection of the endowments-Regularisation of
D   appointment, if any, is only a temporary measure-Commissioner has no
    power to appoint a head of a Math.

          Religious and Charitable Endowments-Math-Madathipathi-
    Appointment of-Deed of instrument by which the Math was founded provided
    mode of devolution of its headship on the basis of Sishya Parampara (Guru
E   to disciple)-Last head died without appointing a successor as per the mode
    of succession-Registered society which founded the Math appointed a person
    as the Head in accordance with its Memorandum of Association-Validity
    of-Held: Mode of appointment of head of a Math is governed by the deed
    of instrument by which it was established-There can be no departure from
    such mode without valid justification-Hence, society validly appointed the
F   said person as Madathipathi-Person acting only as agent or mukami of the
    properly appointed head has no right to succeed as Madathipathi.

          The dispute in this appeal relates to the appointment of the Madathipathi
    of Shiva Kanchi Udasi Math, Kanchipuram. The Math was founded by a Society
G   based in Allahabad and registered under the Societies Registration Act, 1860.
    The deed of instrument by which the Math was founded provided for the mode
    of devolution of its headship, which was from Guru to disciple (Sishya
    Parampara). By a deed of appointment one R was appointed as the head of the
    Math.

          R appointed N as his agent or mukami to look after the Math and its
H                                      494
      B.C DASS UOHASI ,. MAH ANT BASANT DAS BABAJ! CH ELA BABA LAXMANOAS lJDASI SADHU   495
properties. In the judicial proceedings initiated on behalf of the Math, N                    A
described himself and also acted as a Mukami appointed by the Allahabad
Society.

       No successor was appointed after the demise of R. The Allahabad
Society transferred N from the Math in question to some other place. N handed
over possession of the properties of the Math but later trespassed into the                   B
said properties and assumed possession thereof asserting that the Math in
question was an independent institution of which he was the head. This led to
the filing of a suit by the Allahabad Society seeking declaration that the
properties belonged to it and also prayed for delivery of possession. In this
suit N contended that the Allahabad Society had no power or authority over                    C
the Math in question. During the pendency of the suit N was appointed receiver
and in the said capacity N submitted accounts to the court in respect of the
management of the Math properties.

      The said suit was dismissed. However, in the judgment certain
observations were made and some of the findings were recorded against N as                    D
well. Both the Allahabad Society and N preferred separate appeals before the
High Court.

       High Court dismissed the appeals and issued directions for the
appointment of the head of the Math. The High Court found N not to be a duly
installed or duly appointed htad of the Math and h~ was thus held incompetent                 E
to nominate or appoint his successor. The High Court also directed that the
Commissioner under the T.N. Hindu Religious and Charitable Endowments
Act, 1959 could intervene and take steps to fill up the vacancy, if any, in the
headship of the Math.

      The Allahabad Society filed an appeal before this Court. N died in                      F
February 1960 during the pendency of the appeal anri his nominee, S, was
substituted as a respondent in place of N. The appeal was dismissed as
withdrawn. The Allahabad Society appointed the respondent-plaintiff as the
head of the Math by a resolution dated 20-11-1972 in accordance with its
Memorandum of Association. The respondent-plaintiff filed a suit contending                   G
that the plaintiff was legally and validly appointed as the head of the Math,
that S was illegally occupying the said Math without any authority and sought
a decree of declaration and possession. The trial court dismissed the suit but
the High Court allowed the appeal.

      In this appeal. on behalf of the appellant, it was contended that N validly             H
    496                    SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A   appointed his successor and, therefore, the respondent could not be appointed
    as the head of the Math; that the Allahabad Society had no power to make the
    appointment of the head of the Math; and that the appointment of N was
    regularised by the Commissioner under Section 60 of the Act.

          Dismissing the appeal, this Court
B
           HELD: 1.1. No religious head/Madathipathi of the Math in question was
    appointed after the demise of the last appointee, namely, R. Under these
    circumstances, the Allahabad Society had rightly called for the meeting to
    appoint the head of the Math in question. It is, however, clarified that once
    someone is validly appointed as the head of the Math, the future mode of
C   devolution would be governed by the Sishya Parampara (Guru to disciple) which
    is the mode contemplated by the document by which the Math was established.
    There could not be any departure from the said mode without any valid
    justification. 1504-C)

D         1.2. N was neither a11pointed as the head nor his appointment was
    regularised during his lifetime. He died in February 1970. The resolution
    dated 20-11-1972 unanimously appointed the plaintiff-respondent as the head
    of the Math. The said meeting was attended by 21 Mahan ts of independent
    Maths and 12 Members of the Governing Body of the Society. In view of the
    evidence on record, the contention that the respondent-plaintiff was not validly
E   appointed as the head of the Math in question cannot be accepted.1504-E, GI

          2.1. The contention of the appellant that the appointment of N was
    regularised by the Commissioner under Section 60 of the T.N. Hindu Religious
    and Charitable Endowments Act, 1959 deserves to be rejected. Section 60 only
    empowers the Commissioner to take steps for the temporary custody and
F   protection of the endowments of the Math. Thus, the regularisation of
    appointment, if any, could only be as a temporary measure. Section 60 does not
    empower the Commissioner to appoint a head of the Math. [505-E-FI

          2.2. The direction in the earlier judgment of the High Court that the
G Commissioner under the T.N. Hindu Religious and Charitable Endowments
    Act, 1959 may intervene and take steps to fill up the vacancy, if any, in the
    headship of the Math has to be understood to mean that the vacancy is to be
    filled up by the Commissioner as a temporary measure within the ambit and
    scope of the provisions of the said Act. The appellant cannot make the order
    of the Commissioner as a basis for his rights to be appointed as a head of the
H   Math. 1506-FI
BABAOIARANDASS UDHASI v. MAHANTBAS.\NTDASBABAJICHELABABALAXMANDAS UDASI SADHU (Y.K. SABHARWAL,J.I   497

       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 975 of 1988.                                       A
      From the Judgment and Order dated 7.9.87 of the Madras High Court
in A.S. No. 528 of 1980.

      S. Padmanabhan, R. Sundaravaradan, D.D. Thakur, S. Balakrishnan, S.D.N.
Vimalanathan, Ms. Pushpa Rajan, K.B. Sounder Rajan, V. Prakash, Mahesh                                    B
Kasana, Ms. Apama Rohtagi, K.B. Rohtagi and N.N. Bhatt for the appearing
parties.

       The Judgm.ent of the Court was delivered by

      Y.K. SABHARWAL, J. The dispute in this appeal relates to the                                        C
appointment of the Madathipathi of Shiva Kanchi Udasi Math, Kanchipuram.
The parties or through whom they claim have been litigating foDthe last more
than four decades.

      The Math in question was founded by one Yogadhiana Mahant Bavaji                                    D
under an instrument dated 29th January, 1870. The executant of this document
described himself as the disciple of Bavaji Niranjan Dass and executed the
document in favour of Gurusarandass Bavaji describing him as his chief
disciple. This document not only establishes the foundation of the Math but
also provides for the mode of devolution of its headship. The outgoing head
could nominate his disciple to be the next head. The mode of devolution thus                              E
is from Guru to disciple (Sishya Parambarais). Gurusarana Dass Bavaji later
succeeded as Madathipathi (hereinafter referred to as 'head'). Gurusarana
Dass Bavaji was succeeded by Narayana Dass Bavaji as head under the will
dated 2nd September, 1901 executed by said Gurusarana Dass. Mahant
Narayana Dass Bavaji remained head of the Math from 190 I to 1925. By a                                   F
deed of appointment dated !st May, 1925, Mahant Narayana Dass Bavaji
appointed one Ramjidass as the head of the Math.

      Nagendra Dass came on the scene in the year 1928. The appellant claims
through Nagendra Dass. Nagendra Dass allegedly appointed Surjan Prakash
who in tum appointed the appellant as the head of the Math.                                               G
       Ramji Dass executed a power of attorney dated 11th January, 1928
appointing Nagendra Dass as his agent. The reason for the execution of the
power of attorney is stated to be that Ramji Dass had to often remain away
visiting villages and, therefore, he appointed Nagendra Dass to look after the
Math and its properties. Nagendra Dass claimed that Ramji Dass had appointed                              H
    498                   SUPREME COURT ilEPORTS (2000] SUPP. I S.C.R.

A   him as the head of the Math. There is, however, no document appointing
    Nagendra Dass as head in succession of Ramji Dass. In respect of earlier
    appointments of heads upto the appointment of Ramji Dass, the documents
    of succession have been placed on record and proved.

           The Society by the name of Shri Pujya Padh Aduyath Panch Parmeshwar
B   Panchayati Akara Bara Udasin Nirwan (for short the "Allahabad Society")
    having head office at Allahabad was founded as a religious society and
    registered under the Societies Registration Act of 1860. In substance the
    disputes are between the Allahabad Society and those claiming through the
    said society on one hand and Nagendra Dass or those claiming through him
C   on the other.

          The Memorandum of the Association of the Society of the year 1927
    inter alia P.rovide as under:
              •
           "I. To manage the funds provided by the Udasin Sants Mahants and
           householders for the service of the Udasi Sadhus of the Akhara while
D          establishing the same and to increase by proper means the said fund
           as well as these that may be required or added to it from time to time
           and we spend the same or objects which are in accordance with the
           religious principles and practices of the Udasin and to maintain and
           improve the position of the akhara.
E          2. To make arrangements for the food and accommodation of such
           Udasis Mahants and Sants as may visit and of the centers of this
           Akhara, or attend the fairs such as Eambha and the Adhkumbi bathing
           fairs, which are usually held at certain places of pilgrimage for the
           meeting together of Sadhus; and
F          3. To make arrangements for the appointment of Mahants of the
           Sthans of Udasis called Sangate which are independent of this Akhara
           but from which the Akhara often draws its disciples and for the
           protection and supervision of the said Sangate and to take proper
           steps to maintain their states in case of interference on the part of
G          others".

           Nagendra Dass is described as a disciple of Mahan! Karan Dass and
    is a signatory to the Memorandum of Association of the Allahabad Society
    holding the office of Mukami(Agent). A Mukami is a person appointed in
    accordance with the rules of the Allahabad Society and entrusted with the
H   management of the head office and branches of the society.
BABA CH ARAN DASS UDHASI v. MAHANTBASANTDAS BABAJI CHELABABA LAXMANDAS UDASI SADHU (Y.K. SABHARWAL, J.I   499

     In the judicial proceedings initiated on behalf of Math in the year 1928- A
and 1944 by Nagendra Dass, he described himself and also acted as a Mukami
appointed by the Allahabad Society. The said proceedings pertained to the
management of the Math and its properties.

       The disputes between the Allahabad Society and Nagendra Dass
commenced some time in the year 1955. The genesis of the dispute is said B
to be the alleged transfer ofNagendra Dass made by Allahabad Society from
Math in question to Gaya. According to the society, Nagendra Dass handed
over possession of the properties of the Math but later trespassed into the
said properties and assumed possession thereof asserting that the Math in
question was an independent institution of which he was the head. This led C
to the filing of suit No: OS No.12 of 1956 by the Allahabad Society seeking
declaration that the properties belong to it and also praying for delivery of
possession and certain other reliefs. Nagendra Dass contested that suit inter
alia contending that the society was no more than a voluntary organisation
 formed for the mutual hold, benefit, guidance and better management of the
various institutions of the religious order of Udasis which had been founded D
and established in several parts of the country and that neither he nor his
predecessors surrendered to the society any power or authority over the
Math in question. During the pendency of the suit Nagendra Dass was
appointed receiver and in the said capacity he was submitting accounts to
the court in respect of the management of the Math properties. The said suit E
was dismissed on 12th February, 1960. However, in the judgment certain
observations were made and some of the findings were recorded against
Nagendra Dass as well. The result was that both the society and Nagendra
Dass preferred separate appeals before the Madras High Court. The High
Court while dismissing the appeals by judgment dated 29th April, 1966, issued
directions for the appointment of the head of the Math. Nagendra Dass was F
not found by the High Court to be a duly installed or duly appointed head
of the Math and he was thus held incompetent to nominate or appoint his
successor. It is evident that the High Court thought it fit and proper to issue
directions for due appointment of the head of the Math for future even while
confirming the judgment of the trial court dismissing the suit. It seems that G
the High Court adopted this course on account of the peculiar circumstance,
namely, the incompetency of Nagendra Dass to nominate or appoint his
successor and was of the view that the Math should not remain headless. The
relevant part of the judgment dated 29th April, 1966 reads as under:

          "If the defendant's statement as to his nomination by the predecssor                                  H
    500                    SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A           is not made out the question may arise whether he is properly in office
            this may lead to further difficulties as if he is not validly in office he
            would be incompetent to nominate or appoint his successor. In the
            circumstances it is desirable that the validity of the claim of the
            defendant to the headship is determined. If he has not been duly
            nominated to the office but is otherwise suitable his position as head
B           will have to be regularised according to the practice of the Math in
            question or the vacancy has to be filled up in accordance with the
            rules and usages governing the Math which in a way have been
            indicated above briefly. So far as the fitness of the defendant to the
           office is concerned, from the secular aspect the learned District Judge
c          observes that he has been managing the Math properties to the best
           of his ability in the interests of the Math. Steps in this regard for
           regularisation if required of his headship of the Math may have to be
           taken by persons interested. The defendant himself admits that the
           plaintiff society has been formed for the guidance and better
           management of the various institutions of the religious order of uda!is.
D          The rules and regulations governing the plaintiff society also provide
           for making arrangement for the appointment of the mahants of the
           sthans or udasis called sangats which are independent of the plaintiff
           Akhara from which the Akhara draws its disciples. In the circumstances
           it will be open to the plaintiff society itself to move in the matter or
E          the disciples of the suit Udasi Math may take the necessary action.
           We may also point out that if need be the Commissioner under the
           Madras Hindu Religious and Charitable Endowments Act (Act XXll
           of 1959) may intervene and take steps to fill up the vacancy if any in
           the headship of the Math. Meanwhile in our view it is desirable that
           the defendant continues to submit statement of accounts of the affairs
F          of the Math duly audited by a chartered accountant at the expense
           of the suit Math to the plaintiff society and to the trial court once in
           six months."

           Nagendra Dass did not challenge the judgment of the High Court. The
G   Allahabad Society, however, filed an appeal before this Court (Civil Appeal
    No. 799 of 1967). Nagendra Dass died during the pendency of the appeal. He
    is stated to have been died on 8th February, 1970. In the appeal, Surjan
    Prakash was substituted as a respondent in place of Nagendra Dass. The
    appeal was, however, dismissed as withdrawn in terms of the order of this
    Court dated 3rd August, 1972. The order records that counsel for the appellant
H   sought permission to withdraw appeal and counsel for the respondent gave
BABA.OiARAN DASS UDHASI v MAHANTBASANTDAS BABAJICHELABA.BALAXMANDAS UDASI SADHU [Y.K. SABHARWAL.ll   501

an assurance that his client will not apply for withdrawal of the amount in                                A
deposit in the district court for a period of two months so that the appellants,
if they so desire, may take appropriate proceedings as indicated in the judgment
of the High Court.

       After the withdrawal of the appeal as aforesaid, the suit (OS No. 21 of
 1973) out of which the present appeal has arisen was filed. In the plaint, it                             B
was, inter alia, pleaded that the plaintiff was legally and validly appointed
as head of the Math in question according to the rules and regulations of the
Allahabad Society and the practice and the customs prevailing in the Udasis
Sect of Sadhus in terms of the document dated 20th November, 1972 and that
all the formalities regarding Madathipathiship have been completed according                               C
to the customs prevailing in the community and the plaintiff has been accepted
as Madathipathi of the Math in question by members of the frat<. "llity. It was
further pleaded that the defendant Surjan Prakash was illegally occupying the
said Math without any authority and that it had been finally held by the court
of law that Nagendra Dass was not the Madathipathi of the Math in question
and the vacancy was to be filled according to rules and as per directions                                  D
contained in the judgment dated 29th April, 1966. The further averment made
in the plaint was that Ramji Dass was the last head of the Math and he did
not nominate anyone as successor. Nagendra Dass was not the disciple of
Ramji Dass to succeed as head as a Chela succeeding the Guru and he was
only appointed as agent under the power of attorney. There is no head for                                  E
the Math after Ramji Dass's death and the plaintiff was rightly appointed on
20th November, 1972. The decree for declaration was sought that the plaintiff
is the Madathipathi of the Math and its properties detailed in the schedule
annexed to the plaint in respect whereof decree for possession was also
sought.
                                                                                                           F
      The suit was resisted on various grounds by defendant Surjan Prakash.
By judgment dated 12th of July, 1979, the Principal Subordinate Judge,
Kanchipuram dismissed the suit. In appeal preferred before the High Court,
the three points urged on behalf of the plaintiff were:

         I.     Whether the appointment of the plaintiff as the Head of the suit                           G
                Math is valid and binding?
          2.    Whether the defendant is a properly appointed Madathipathi of
                the suit Math?
          3.    Whether the defendant has perfected his title by adverse
                possession?                                                                                H
    502                     SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A          The High Court by the impugned judgment held that the judgment and
    decree of the trial court is not sustainable and thus allowing the appeal, the
    suit as prayed, was decreed. The impugned judgment is substantially based
    on the earlier judgment of the High Court dated 29th April, 1966 which became
    final. The High Court has held that Nagendra Dass was not legally and validly
    appointed as head of the Math and his appointment was not recognised or
B   regularised by any of the modes directed in the earlier judgment of the High
    Court and that the plaintiff had been validly appointed. Surjan Prakash, the
    original defendant having died during the pendency of the appeal before the
    High Court, the present appellant was substituted as a respondent having
    been allegedly appointed as a successor by Surjan Prakash. The contention
C   of adverse possession was also rejected.

          The basis of the right of the respondent (plaintiff) to occupy the office
    of the head of the Math is the Memorandum of the Allahabad Society of the
    year 1927; the earlier judgment of the High Court and his appointment as a
    head on 20th November, 1972. The claim of the appellant is based upon the
D   rights of Nagendra Dass and Surjan Prakash.

           Learned counsel for the appellant submits that Nagendra Dass was
    appointed and remained a head of the Math during his life time and after his
    demise his appointee Surjan Prakash and after him, the appellant was rightly
E   and validly appointed as the head of the Math and, therefore, the office of
    the head of the Math was not vacant and thus there could be no question


                                                                                        -
    of appointing the respondent as a head of the Math. In our view, the question
    whether the vacancy of the head of the Math existed or not stands concluded
    by the earlier decision of the High Court which, inter alia, directed the
    vacancy to be filled in accordance with the rules and usages governing the
F   Math. Further there is ample material on record to establish that Nagendra
    Dass was appointed merely a Mukami (Agent) and was not appointed head
    of the Math. Nagendra Dass had himself so described his status in the judicial
    proceedings initiated by him in respect of the properties of the Math against
    third parties. In OS No.43/44 which was pending before Sub-Judge, Chittore,
G   Nagendra Dass had stated that he had been appointed by the Allahabad
    Society. Nagendra Dass was appointed as an agent as per general power of
    attorney executed by Ramji Dass. In view of the overwhelming evidence the
    appellant cannot be allowed to plead that Nagendra Dass was head of the
    Math. That being the position he could not validly nominate any person as
    head of the Math. The alleged nomination of Surjan Prakash was, therefore,
H   illegal and so also the nomination of the appellant. In the earlier decision, the
BABA OiARAN DASS UDHASI 1•. MAHANT BAS ANT DAS BABAJI CH ELA BABA LAXMANDAS UDASI SADHU fY .K SABHARW AL. J.I   503

High Court had concluded that Nagendra Dass was "incompetent to nominate                                              A
or appoint his successor."

       The Allahabad Society, it was next contended, had no power to make
the appointment of the head of the Math. It deserves to be noticed that the
 appointment of the respondent as a head of the Math ha~ not been made by
the Allahabad Society but has been made in a congregation of Mahants B
arranged by the society. Para 3 of Memorandum of Association of Allahabad
Society extracted hereinabove shows that the society could make arrangements
for the appointment of the Mahants of the Sthans of Udasis called Sangats
and it seems that in view thereof the earlier decision of the High Court
directed the vacancy of the office of the head of the Math to be filled in C
 accordance with rules and usages governing the Math. Learned r,ounsel for
the appellant contended that the words 'to make arrangements for the
appointment of Mahants' does not mean that the Allahabad Society has been
given power to appoint a Mahant and as per para 3 of Memorandum of
Association the Society could only make arrangements for such appointment
which is different than making appointment itself. We are unable to see any D
relevance of the fine distinction sought to be made by the learned counsel.
 In any case, the appointment has been made in the congregation called by
the Allahabad Society. The appointment as such has not been made by the
society. The society had only called for the meeting of various Mahants
which amounts to making arrangement for the appointment of the Mahant of E
the Math in question. In that meeting the respondent/plaintiff was appointed
as Mahant, i.e., head of the Math. Nagendra Dass had admitted that the
Allahabad Society had been formed for the guidance and better management
of various institutions of the religious order of Udasis. In fact, even these
questions cannot be reopened in view of the decision dated 29th April, I 966.
Considering that Nagendra Dass was not validly nominated as head of the F
Math in question, the High Court while deciding earlier appea!, was left with
the option to either let the things remain as they were which may have
resulted in uncertainty and possibly further litigation or to issue necessary
directions for the filling up of the vacancy of the office of the head of the
Math. While dismissing the appeal, the High Court exercised the second G
option leaving it open to the Society to even regularise/appoint Nagendra
Dass as head of the Math according to the practice of the Math in question
and in the meantime Nagendra Dass was directed to continue to submit
statement of accounts of the affairs of the Math duly audited by a Chartered
Accountant to the Allahabad Society and to the trial court once in six months.
It appears that Nagendra Dass had come down from Allahabad some time in H
     504                   SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A the year 1925 and was appointed as an agent of Ramji Dass to assist him in
  the management of the Math in question under the terms of the power of
  attorney referred to above. He continued to act as an agent even after the
  demise of Ramji Dass who died at Hardwar in 1932. There are documents
  proved on record in respect of appointment of the other heads of the Math
  but there is no document showing the appointment of Nagendra Dass as head
B of the Math. It seems that no religious head/Madathipathi of the Math in
  question was appointed after the demise of the last appointee namely Ramji
  Dass. Under the aforesaid circumstances, the Allahabad Society had rightly
  called for the meeting to appoint head of the Math in question. It may,
  however, be clarified that Clnce someone is validly appointed as the head of
C the Matb, the future mode of devolution would be governed by the Sishya
  Parambarais(Guru to disciple) which is the mode contemplated by the document
  by which the Math was established. There could not be any departure from
  the said mode without any valid justification. It is neither necessary to decide
  no~ there is sufficient material on record to form a definite opinion as to why
D departure of the mode of Sishya Paramparai was made on earlier occasion.
  Ordinarily the devolution should be from Guru to disciple.

        Nagendra Dass was neither appointed as head nor his appointment was
  regularised during his lifetime. He died in Feb. 1970. The resolution dated 20th
  November, 1972 unanimously appointed plaintiff as the head of the Math. The
E said meeting, it has come on record, was attended by 21 Mahants of
  independent Maths and 12 Members of Governing Body of the Society. In
  that congregation was also present the Mahant of Maharashtra Manda!. It
  has also come on record that about 2000 Udasin Mahants spread over different
  parts of the country come under four pangats. The said four pangats are
  further divided into 50 mandals and the Math in question comes under
F Maharashtra Manda!. It has also come in evidence that since there was no
  separate Udasin Manda! for Udasin Maths in Tamil Nadu, for sake of
  convenience Udasin Maths in Tamil Nadu were included in Maharashtra
  Manda! for proper management. In view of the evidence on record, the
  contention that the respondent/plaintiff was not validly appointed as the
G head of the Math in question cannot be accepted.
         Learned counsel for the appellant further contended that Nagendra
  Dass was functioning as the Mahant since 1932 and, therefore, the suit filed
  in 1973 was hopelessly barred by limitation and also that he had perfected
  his title by adverse possession. Learned counsel for the respondent, on the
H other hand, sought to rely on Section 10 of the Limitation Act. In our view,
BABAOIARAN DASS UDHASI v. MAHANT BA.SANT DAS BABAJI CHELA BABA LAXMANDAS UDASJ SADHU IY.K. SABHARW AL. J.J   505

however, the said Section has no applicability as it only excludes the application                                 A
of limitation in suits against trustees. That was not the status of either
Nagendra Dass or Surjan Parkash or the present appellant. We, however, need
not dwell further on this aspect as in our view, even otherwise there is no
merit in the contention urged on behalf of the appellant. It has been established
that Nagendra Dass had been only acting as an agent till 1954. It is only in
1955 or thereabout that he had set up an independent title which led to earlier                                    B
suit being filed in February 1956. In that suit Nagendra Dass was appointed
as a Receiver. That position continued even when the appeal of the Allahabad
Society was dismissed by the High Court on 29th April, 1966. In the judgment
dated 29th April; 1966, the High Court continued the status ofNagendra Dass
as a Receiver till such time the appointment of Mahant is made in accordance                                       C
with the judgment of the High Court. It was directed that Nagendra Dass
would continue to submit statement of the accounts of the affairs of the Math
duly audited by a Chartered Accountant to the Allahabad Society and to the
trial court. As already noticed in this Court, the appeal against the decision
of the Madras High Court was withdrawn on 3rd August, 1972 with a view
to take proceedings for appointment of the head of the Math as indicated in                                        D
the judgment of the High Court. The said proceedings took place on 20th
November, 1972 and soon thereafter the suit out of which the present appeal
has arisen was filed.

       The last contention urged on behalf of the appellant relying upon                                           E
Section 60 of the Madras Hindu Religious and Charitable Endowments Act
is that the appointment of Nagendra Dass as a Mahant was regularised under
the orders dated 4th June, 1973 passed by the Commissioner and on this
ground too suit ought to have been dismissed. This contention also deserves
to be rejected. Prior to 4th June, 1973 the respondent had been appointed as
a head of the Math. Further, Section 60 only empowers the Commissioner to                                          F
take steps for the temporary custody and protection of the endowments of
the Math. Thus, the regularisation of appointment, if any, could only be as
a temporary measure. Section 60 does not empower the Commissioner to
appoint a head of the Math. The said Section reads as under:-
                                                                                                                   G
          "Section 60( I) : When a vacancy occurs in the office of the trustee
          of a Math or specific endowment attached to a math and there is a
          dispute respecting the right of succession to such office or when
          such vacancy cannot be filled up immediately, or when the trustee is
          a minor and has no guardian fit and willing to act as such or there
          is a dispute respecting the person who is entitled to act as guardian,                                   H
    506                     SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A            or
                 When the trustee is by reason of unsoundness of mind or other
             mental or physica.I defe ...\or infirmity unable to perform the functions
             of the trustee.

B                The Assistant Commissioner take such steps and pass such order
             as he thinks proper for the temporary custody and protection of the
             endowments of the Math or ifthe specific endowment as the case may
             be, and shall report the matter forthwith to the Commissioner.

             (2) Upon the receipt of such report, ifthe Commissioner, after making
C            such enquiry as he deems necessary, is satisfied that an arrangement
             for the administration of the Math and its endowments or of the
             specific endowment, as the case may be, is necessary, he shall make
             such arrangement as he thinks fit until the disability of the trustee
             oeases or another trustee succeeds to the office, as the case may be.

D            (3) In making any such arrangement, the Commissioner shall have due
             regard to the claims of the disciples of the Math, if any.
             (4) Nothing in this section shall be deemed to affect anything contained
             in the Tamil Nadu Court of Wards Act, 1902. (Tamil Nadu Act I of
             1902)."
E
  The last contention is thus also without any merit. The direction in the earlier
  judgment that the Commissioner under the Madras Hindu Religious and
  Charitable Endowments Act may intervene and take steps to fill up the
  vacancy, if, any in the headship of the Math has to be understood to mean
  that the vacancy is to be filled by the Commissioner as a temporary measure
F within the ambit and scope of the provisions of the said Act. The appellant
  cannot make the order of the Commissioner dated 4th June, 1973 as a basis
  for his rights to be appointed as a head of the Math.

         For the aforesaid reasons, we find no substance in the appeal which is
    accordingly dismissed. The parties are, however, left to bear their own costs.
G
    v.s.s.                                                        Appeal dismissed.