The L. T. Swamiar, A.I.R. 1954 S.C.

The Supreme Court has held that the office of a mahant is hereditary, and the right to such an office is in the nature of “property.” (Commissioner, Hindu Religious Endowments, Madras v. Sri L. T. Swamiar, A.I.R. 1954 S.C. 282)

The general rule is that the appointment of a new mahant is to be made from amongst the disciples of the deceased mahant, and failing them, from amongst his spiritual kindered. If a mahant has the power to appoint his own successor, he cannot delegate that power to a mahant of a neighbouring math or to any other person. (Mahanath Ramji v. Lachhu, (1902) 7. C. W. N. 145)

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However, even when a mahant has a power to nominate, his nominee cannot be a disqualified person and the appointment of such a disqualified person will be invalid.

Likewise, if the appointment of a successor is not made bona fide in the interests of the math, but in furtherance of the interests of the person appointing, the appointment is invalid. (Ramalingam v. Vythilingam, 16 Mad. 490)

In some places, a custom prevails that the Mahant’s nominee should also be approved or confirmed by the members of the religious fraternity.

In a panchayati math, the succession to mahantship is by election, and the mode of election is determined by the custom and usage of the math.

Alienation of DEBUTTER property by MAHANT:

Generally speaking, under Hindu law, when property is earmarked for maintenance of religious worship and charities connected to such worship, such property is inalienable. Although this is a general rule, a mahant (or a shebait) does enjoy limited powers of alienation as far as the debutter property is concerned.

The power of a mahant to alienate debutter property is like the power of a manager of an infant heir, limited to cases of unavoidable necessity. The power of a mahant to alienate the corpus of the debutter property is to be measured by the exigencies of the occasion.

An alienation of such property cannot be justified, unless it is impracticable to carry out the service and worship of the deity and matters incidental thereto, or to preserve the dedicated property, without incurring the expenditure for the defraying of which the alienation is proposed to be effected, and further, unless the required expenditure cannot be met out of the income of the endowment and without alienating the estate. In short, the power of alienation must be exercised for purposes of defence and not of aggrandisement; it can be used as a shield, and not as a sword.

Apart from any question of necessity, a mahant has the power to create an interest {e.g., a lease) in property appertaining to the Math, which will continue during his own tenure of the office of mahantship of the Math.

Excepting cases of unavoidable necessity, a mahant is incompetent to create any interest in respect of the Math property which is to endure beyond his life. Where the disposition is an out- and-out disposition of the Math and its properties, such a disposition is void, and would pass no title.

Likewise, a permanent lease granted by a mahant would be invalid if there was no legal necessity for it. (Abhiram v. S. Charan, (1909) 36 Cal. 1003)

As observed by the Privy Council in Hanooman Prasad v. Mussamut Babooee (6 M.I.A. 393), the powers of the Shebait or mahant are the same as those of the manager for an infant heir. He cannot, therefore, alienate the property, except for necessity or for the benefit of the estate.

The actual pressures on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance, are the important factors to be considered. But, benefit of the estate is generally confined to acts of a defensive character.

Thus, where property is alienated and the proceeds invested for the purpose of producing a large income, it will be deemed neither for necessity nor for the benefit of the estate, and will, therefore, not be upheld.

In one case, the mahant of a math borrowed money at interest (2% per month), mainly for the constructing buildings for accommodation of rich devotees visiting the math, and also partly for ordinary expenses of worship.

After some time, he mortgaged some of the math properties for a loan (at 1% interest per month) to discharge the earlier loan. In a suit to enforce the mortgage (in respect of the second loan), the Privy Council held that the mortgage was for a legal necessity, so as to be within the mahant’s power.

This would be so, even if the original loan was recklessly taken, and not really for the benefit of the math, which however, was not proved in the present case. (Nildari Sahu v. Mahant Chaturbhuj Das, A.I.R. 1926 P.C. 112)

The Supreme Court applied the principle of the above case and upheld a mortgage created by a mahant (followed by a subsequent sale), when he borrowed money to meet legal expenses to meet litigation against a trespasser claiming an adverse title to the math. (Biram Prakash v. Narendra Dass, A.I.R. 1966 S.C. 1011)

Burden of proof:

Where the alienation is challenged, the alienee must prove (a) that there was a legal necessity; or (b) that after all due and proper inquiries, he bona fide believed in its existence.

Rights of the Founder:

The following are the four main rights of the founder:

1. The founder can determine the line of succession of the shebaitship, provided it does not interfere with the general law of inheritance by the creation of an estate unknown or repugnant to Hindu law.

2. In case the founder does not make any provision, the shebaitship will vest in him and his heirs.

3. In case the line provided by the founder fails, the shebaitship reverts to him and his heirs.

4. If the object of the endowment is not carried out, the founder and his heirs may sue to have the property applied to its lawful purpose, or if the trust fails for want of an object, to have the property applied ñó-pres, i.e., to other objects of a similar character.

Bhabtarini v. Ashalata, 70 I.A. 57. S had, in his life-time, established certain family idols and had dedicated considerable properties to them. He had a son, P, and a daughter B. The provisions made by the founder for the devolution of the shebait were that S and his wife R should be the first shebaits, and that on the death of S (who survived his wife), P should be the shebait in his stead. S died in 1929 and P died in 1932.

On P’s death, the specific provisions validly made by S as the founder with respect of the office of shebait became exhausted. In 1933, Â by a suit, claimed to have become, on the death of P, entitled to the shebaiti and the management of the debutter property. She impleaded P’s widow and her daughters as persons wrongfully in possession of the debutter property and falsely claiming to be shebaits.

The Court held, dismissing B’s suit that, on P’s death, P’s widow became entitled to the shebaiti.