DIWAN Vs. CHHAJJU GIR

JUDGEMENT

(1.) The litigation which has given rise to this appeal concerns the property which belonged to three brothers, namely, Dalpat Gir, Ganpat Gir and Dhanpat Gir, the sons of one Ram Gir. Dhanpat Gir died about the year 1895, leaving his brothers surviving him. Dalpat Gir died in the mon January, 1902, leaving a widow, Musammat Beldevi. On the 26 of May 1902, Ganpat Gir died, leaving the defendant Musammat Ram Rakkhi, who is said to have been a mistress, and a son by her, namely, the defendant Chhajju Gir. The parties belong to the goshain community, and the plaintiff's case is that the property of a member of that community devolves upon his chela or disciple, and that according to custom the widow of a deceased goshain, in case her husband has no disciple at the time of his death, may nominate a disciple with the authority of the members of the community, and that the disciple so nominated succeeds to the property of her husband; that the plaintiff was nominated by Musammat Beldevi with the consent of the community and so became what, we may term, a posthumous pupil of Dalpat Gir, and as such entitled to his property. It is not stated in the plaint how the disputed property was acquired. It is merely alleged that it was first owned by Mahant Ram Gir and on his death devolved upon Dalpat Gir, Ganpat Gir, and Dhanpat Gir. It has been found by the Court below that the property is not endowed property and that Dalpat Gir, Ganpat Gir and Dhanpat Gir held their shares of it separately. These findings are not challenged. The defendant appellant in his grounds of appeal impeached the findings that the property was not endowed property, but this ground was abandoned before us.

(2.) The custom upon which the plaintiff relics is thus stated in the plaint. It is first alleged that Dalpat Gir at the time of his death authorized his widow to make a disciple in his name, and then it is alleged that "there has been a practice and custom in the goshain community that on the death of a person the members of the community cause a disciple to be made in the name of the deceased and make him occupy his place. Accordingly, Musammat Beldevi, in accordance with the permission of Dalpat Gir and also the practice in the Goshain community, assembled the members of the community, made the plaintiff a disciple in the name of Dalpat Gir, deceased, at her house on the 6 of June 1902, and performed all the necessary rites." It is further alleged in the plaint that "it is also necessary for a newly made disciple, wishing to be the representative and successor of a deceased person, that he should be duly declared representative and successor by the members of the community after a feast has been given. Accordingly, after a feast had been given on the 12 October 1902, the members of the community declared the plaintiff a mahant to take the place and be the representative of Dalpat Gir, deceased, and therefore the plaintiff is the lawful owner of his (Dalpat Gir s) estate." We may here state that Dalpat Gir and Ganpat Gir succeeded to the share of the estate of Dhanpat Gir upon his death. There is no dispute as to this. The plaintiff claims to be entitled not merely to the share of Dalpat Gir but also to the share of Ganpat Gir, but we are at a loss to understand how he can establish any right to this share.

(3.) The defendant Chhajju Gir and his mother denied the existence of the custom. Chhajju Gir claims to be entitled to the property of Ganpat Gir as his disciple and he also claims to be entitled to it under the will of Ganpat Gir, dated the 20 of February 1902. But before us he did not so much rest his case on the merits of his own title as on the weakness of the plaintiff respondent's case.