This is an application under section 22 read with section 23 of the Code of Civil Procedure for transfer of Civil Suit No. 1-A of 1974 from the Court of District Judge, Seoni, in Madhya Pradesh, to any Court of competent jurisdiction at Allahabad in Uttar Pradesh.
2. The suit relates to a Jyotish Peeth, its management and its property. The plaintiff (non-applicant No. 1) claims to be a lawfully installed Shankaracharya as a successor to Swami Krishna Bodhashram. The applicant who is managing the affairs since 1953, the plaintiff says, could not be lawfully appointed as Shankaracharya because he was not a man of requisite learning; that his succession under the alleged will of late Shankaracharya Swami Brahmanand was invalid; that Swami Krishna Bodhashram was the person selected by the Pandits of the Vidwat Parishad to succeed to the Office on the death of Swami Brahmanand and on his death the plaintiff succeeds. The plaintiff claims in the suit declaration of his title to the Office of Shankaracharya, possession of the property as per Schedule 'A' of the plaint and an injunction restraining the applicant (defendant No. 1) from interfering with his management. The defendants 2 to 4 are the persons who were shown in the alleged will of Swami Brahmanand to be his disciples in addition to the defendant No. 1, for succession to the Office of Shankaracharya in the order of preference.
3. Though the dispute as to succession did not reach the Supreme Court as a direct issue, the dispute reached their Lordships in a different context. On the death of Swami Brahmanand on 20th May, 1953, his will was published on the 8th of June, 1953. Swami Brahmanand had nominated, as aforesaid, a panel of four persons in order of preference to succeed him as head of the Jyotish Peeth. The first choice was for Swami Shantanand Saraswati (the applicant here). On June 12th, the applicant was installed as Shankaracharya. He took over possession and management of the Math properties.
4. A section of the worshippers, who did not approve of the applicant's installation, selected on 25th June, 1953, Swami Krishna Bodhashram for the Office of Shankaracharya and in order to oust the applicant from the Office, sought leave of the Advocate General for a suit under section 92 of the Code of Civil Procedure. The plaintiff-non-applicant No. 1 had joined Swami Parmatmanand and others in their application for consent of the Advocate General, but later when the suit came to be filed, he chose not to become a party. The suit was ultimately filed by Swami Parmatmanand and others in January, 1954. They supported the claim of Swami Krishna Bodhashram to the Office and prayed that Swami Shantanand Saraswati be removed and in his place Swami Krishna Bodhashram be appointed. The suit was dismissed. An appeal before the High Court of Allahabad failed and the matter reached the Supreme Court in Civil Appeal No. 1589 (N) of 1973. Their Lordships of the Supreme Court dismissed the appeal with the following observations: See Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another, AIR 1974 SC 2141:
"The Trial Court, after reading the allegations in the plaint and after looking into the entire evidence in the case, came to the conclusion that the suit was primarily one for declaration that Krishna Bodhashram was duly installed as the Shankaracharya of the Math on June 25, 1953 and that respondent No. 1 had no right to be nominated as the Head of the Math by Brahmanand as he did not possess the requisite qualifications and that his possession of the trust property was only in the capacity of a trustee de son tort, and so he must be removed from the headship of the Math- The High Court saw no reason to differ from the finding. We would be slow to disturb a finding of this nature especially when we see that the allegations in the plaint are reasonably susceptible of being so read. We think that the purpose of the suit was to settle the controversy as to whether Krishnabodhashram or respondent No. 1 had the better claim to the headship of the Math and to the possession and management of its properties by obtaining a declaration of the Court. If the real purpose in bringing the suit was to vindicate the general right of the public to have the rightful claimant appointed to the Office, there was no reason why the plaintiffs omitted to implead or at least refer in the plaint to the three persons nominated by Brahmanand in his will to sacceed him in the order indicated there in especially when it is seen that the plaintiffs accepted the custom of the Math to have the successor nominated by the incumbent for the time being of the Office of Shankaracharya.
The trial Court as well as the High Court, found that there was no evidence to sub-stantiate the allegations regarding the breach of trust said to have been committed by respondent No. 1. In paragraph 20 of the plaint, there was an allegation that the direction of the Court was necessary for the administration of the trust. But no reasons were given in the plaint why the plaintiffs were seeking the direction of the Court. There were no clear allegations of maladministration viz. that respondent No. 1 was diverting the trust properties for his personal benefit or to at he was committing any devastavit. The High Court was of the view that since the plaintiffs did not plead facts and particulars as regards the defect in the machinery for administration which had crept in under custom or rules which required rectification, the prayer for direction was a mere pretence to bring the suit under section 92. A direction cannot be given by the Court unless it is shown that it is necessary for the proper administration of the trust. We do not think it necessary to decide for the purpose of this case whether the words "where the direction of the Court is deemed necessary for the administration of any such trust" must be interpreted as meaning that where the Court has to give directions in the nature of framing scheme or otherwise for the administration of the trust or whether those words can refer only to directions given to existing trustee where, there is one or two new trustees when one is to be appointed or to directions when there are allegations of maladministration amounting to breach of trust. It is sufficient for the purpose of this case to say that the prayer for direction was a prayer in vacuum without any basis in reason or facts."
The suit was held not maintainable under section 92 of the Code of Civil Procedure when the allegations of mal-administration or breach of trust were neither stated nor proved.
5. Swami Shantanand Saraswati after his installation to the Office of Shankaracharya applied for a succession certificate in the Court of District Judge, Allahabad. The non-applicant No. 1 contested the proceedings but without success. Succession certificate was granted in favour of Swami Shantanand on 12th December, 1955. The non-applicant No. 1 preferred an appeal to the High Court which was dismissed for non-furnishing of security for costs.
6. It may be noted here that the non-applicant No. 1 while applying for Advocate General's consent for the contemplated suit under section 92, Civil Procedure Code had given his residential address to be at Varanashi and while contesting the succession proceedings as "Mohalla Durgakum Banaras".
7. Though the non-applicant No. 1 was not a party to section 92 suit, he was interested in the result. He in fact applied for being impleaded as a party in the Supreme Court and he was permitted to address as an intervenor. His counsel did address the Court. As an intervenor he had given his address to be "Krishnaboth Bhavan, 7-Metcalf Road, Delhi".
8. There was yet another litigation commenced by Swami Krishna Bodhashram. He filed a suit-Civil Suit No. 3 of 1963, in forma pauperis against the applicant in the Court of Civil Judge, Tehri, U. P. for being declared the Shankaracharya and for possession of the Math properties. The suit was filed in 1963 forestalling the result of the appeal then pending before the High Court, Allahabad, against the judgment in section 92 suit. That suit covered the same subject-matter as is involved in the present suit at Seoni. The cause of action is based on identically similar facts. The plaintiff-non- applicant No. 1 claims to be successor-in-office to Krishna Bodhashram and in that capacity asserts his right to possession and the management of the Math property. In para 19 of the plaint he pleads that Swami Krishna Bodhashram fell ill in September, 1973, and appointed him to perform the duties of the office and manage the affairs of the Peeth. That the plaintiff took over management. Swami Krishna Bodhashram had proposed to his disciples the name of the plaintiff to be appointed as Shankaracharya after his death. He died on 10-9-1973 and the plaintiff was ceremoniously installed as Shankata-1 charya on 7-12-1973 at. Delhi. The point to be noted is that the plaintiff professed to be already put in the management of the Peeth before Swami Krishna Bodhashram died and continued to manage the affairs after he was installed by a formal ceremony.
9. Civil Suit No. 3 of 1963 was got transferred to the Court of Civil Judge, Allahabad, on the application of the applicant. The applicant wanted the proceedings to be stayed till decision o£ toe appeal in section 92 suit. He I contended that the findings in that suit would operate as res judicata. Civil Judge gave a finding that the decision in section 92 suit would not operate as res judicata. The applicant then went up in Revision to the High Court at Allahabad. The revision was pending when swami Krishna Bodhashram died and the applicant took no steps to bring on record anyone in substitution an the revision was dismissed as abated No order of abatement has so far been passed in the original proceedings i. e. in Civil Suit No 3 of 1963. The suit is shown as pending. Though the suit would automatically abate, the fact nevertheless is that the non-applicant No. 1-plaintiff did not apply for sub-stitution though he was in the interim management of the affairs and later was officially selected as a successor. I will incidentally deal with this aspect a little later.
10. It is admitted that the main seat of the Jyotish Peeth is at Joshi Nath, Chamoli in U. P.. The applicant says that an Up Peeth (subsidiary seat) has long since been established at Allahabad. Swami Btahmanand used to spend his summer at Joshi Math and winter at Allahabad and managed the property and religious discourses from both places. The non-applicant No. 1 does not acknowledge the subsidiary seat at Allahabad.
11. Another fact to be mentioned is that according to the plaint allegations, the property of the Jyotish Peeth situated in U. P. is worth Rs. 7,12,000 and that in Madhya Pradesh worth Rs. 61,000. In the suit which Swami Krishna Bodhashram had filed, the value of the property in Madhya Pradesh was shown as Rs. 13,500 whereas the property in U. P. was shown worth more than Rs. 7 Lacs.
12. It is admitted that none of the four defendants lives in Madhya Pradesh. The plaintiif-non-applicant No. 1 as said above, had been living at Banaras and Delhi as suited his convenience. Now he says, he has a permanent abode in the State of Madhya Pradesh since 1964 and he has opened an Ashram. I fail to see why he professed to be from Delhi when he sought intervention in the Supreme Court appeal heard in 1973. It is also to be seen that he was a pauper till recently, who could not furnish security for costs before the Allahabad High Court and the decree for execution of costs awarded to the applicant in succession case could not be executed against him. He escaped going to civil prison pleading that he was a Sanyasi. All too suddenly, he has become a rich man, advised as he was, to file a suit at Seoni on payment of full Court fee. Instead of prosecuting the suit which his predecessor-in-Office had filed (Civil Suit No. 3 of 1963) by stepping in as a legal representative, he chose to file the suit as if on independent title.
13. The installation ceremonies about which evidence has to come, took place in the State of Uttar Pradesh. The witnesses, therefore, shall be mostly from U. P. or Delhi. The evidence on the custom as to succession must necessarily come from the Principal place of Jyotish Peeth or from the Up Peeth, if it was established at Allahabad. The management of the trust and its property since the time of Swami Brahmanand and thereafter, had been from places in U. P..
14. The question is whether on facts and circumstances as these, the Civil Suit should be transferred to some Court at Allahabad. The first and foremost consideration for transfer of the case to Allahabad is the fact that the main seat of the Jyotish Peeth is at Joshi Math, Chamoli, and it is the normal rule that the law of the State would govern the trust even though any part of the trust property whether large or small, is situate outside the State See: Anant Prasad Lakshminiwas Ganeriwal v. State of Andhra Pradesh, AIR 1963 SC 853. The controversy in that case was whether the Hyderabad Endowments Regulations would apply to a trust situate in Hyderabad State where major part of income yielding endowed property was in the State of Madhya Pradesh and where the trust had been actually registered in that State. Their Lordships held that the trust would still be governed by the Hyderabad Regulations. An earlier decision of the Court reported in State of Bihar v. Sm. Charusila Dasi, AIR 1959 SC 1002 was cited with approval. The following observations were quoted:
"Where the trust is situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust, and as the object of the Act is to provide for the better administration of Hindu Religious Trusts in the State of Bihar and for the protection of properties appertaining thereto, in respect of the property belonging to the trust outside the State the aim is sought to be achieved by exercising control over the trustees in personam, and there is really no question of the Act having extra-territorial operation."
15. I pertinently questioned the parties if the Jyotish Peeth had been registered in the State of Madhya Pradesh. The answer was in the negative. My attention was drawn to the Uttar Pradesh Charitable and Hindu Religious Institutions and Endowments Ordinance, 1976, whereunder the Jyotish Peeth might be required to be registered. I do not know if the applicant has moved the authorities for registration of the trust under the U. P. Ordinance of 1976. Be that as it may, the situs of the trust in so far as M. P. Public Trusts Act, 1951, is concerned, depends on the place where the principal office of the trust is situate or where the principal place of business of the trust is situate. See: Rameshwar Prasad v. K. M. Raina., 1968 MPLJ 545, Jyotish Peeth in the present case has neither the principal office in the State of Madhya Pradesh nor the principal. place of business. Whenever a question of administration of the trust arises, the situs of the trust ought to govern the jurisdiction of the Court. The fact that part of the trust property is situate in the State of Madhya Pradesh and part in the State of Uttar Pradesh would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Ordinance of Uttar Pradesh. See: Ramswarun v. Motiram, AIR 1968 SC 422. Situs of the trust is the prime consideration which must weigh with the Court.
16. The second aspect that ought to weigh is that there was already suit pending in the Court at Allahabad (Civil Suit No. 3 of 1963) filed by the predecessor-in-Office Swami Krishna Bodhashram, On his death, the non applicant No. 1 ought to have stepped in as a legal representative. He was a legal representative within the meaning of section 2 (ii) of the Code of Civil Procedure because by an interim arrangement Swami Krishna Bodhashram had appointed him to manage the Office and the property and at the time of his death, the non-applicant No. 1 was an intermeddler with the estate and also because by subsequent appointment he was installed as a successor. Pappa Bai v. The State of Madras, 1958 (1) M L J 230, their Lordships say:
"A Matathipathi has always two characters, spiritual and temporal; and it is competent for him by his last will and testament to make any arrangement for safeguarding the properties of the Mutt as distinguished from the appointment of a successor. Till the successor is chosen who will combine in himself the spiritual and temporal functions, arrangement can be made for an interim trustee in regard to the temporal functions of the Matathipathi.
Where in his will a Matathipathi makes his daughter the next Matathipathi, and dies pending legal proceedings, there is no objection to bring her on record as the legal representative of the deceased for prosecuting the pending proceedings, though she may not be qualified to be a Matathipathi, as it is not necessary for her to be the Matathipathi in order to come on record as a legal representative as defined by section 2 (ii), Civil Procedure Code."
Successor to the trusteeship and trust property is legal representative within the meaning of section 2 (ii) of the Code of Civil Procedure. See: Hasinabi v. Shrikishandas 1947 N L J 411=A I R 1948 Nag. 60=1 L R 1947 Nag. 402.
17. It is now well settled that the successor applying for substitution would be governed by Order 22, Rule 10 of the Code of Civil Procedure. An application for substitution could, therefore, be made by the non-applicant No. 1 either immediately as an intermeddler or soon after his installation. The non-applicant No. 1 had not only succeeded to the Office which was held by Swami Krishna Bodhashram but also to the litigation he was fighting. What had devolved on succession was not the estate but a right to claim it on successful termination of the litigation commenced by Swami Krishna Bodhashram.
18. I am not at present advised to say whether a suit could be filed independent of the lis commenced by Swami Krishna Bodhashram. That I must leave for the trial Court to decide. The fact, however, remains that cause of action for Civil Suit No. 3 of 1963 and the one filed at Seoni is the same, and if for one the forum chosen is Court at Allahabad, the forum for the other should not be permitted to be Court at Seoni.
19. It was argued on behalf of the non-applicant No. 1 that the suit filed by Swami Krishna Bodhashram was in forma pauperis. An enquiry into pauperism was still continuing and so long he was' not declared a pauper, the suit would not be deemed to have been registered. There was then no suit and substitution of the legal representative was not envisaged.
20. The argument is without merit. The application to sue in form a paupers is itself treated as a suit except that the privilege of non-payment of Court-fee is personal to the pauper. On his death, the legal representative can continue the suit, but has to pay Court-fee in case he is not a pauper within the meaning of the Code. But if he is also a pauper, he can claim the same privilege as was given to the deceased plaintiff. See: Vijai Pratap v. Dukh Haran Nath AIR 1962 SC 941, Santoksingh v. Radheshyam AIR 1975 Bom. 5. and Annapurna Bai v. Balaji Maroti 1946 N L J 272=A I R 1946 Nag. 320..
21. The third aspect for transfer of the suit to Allahabad is the balance of convenience. As stated above, the non-applicant No. 1 was a resident of Uttar Pradesh to oppose the grant of succession certificate or to obtain consent of the Advocate General for a suit under section 92, Civil Procedure Code. He did not then disclose that his permanent abode was somewhere in Madhya Pradesh. At the time he intervened in the Supreme Court, he gave himself out to be a resident of Delhi. If it was convenient then to be at Allahabad or Banaras, it should be convenient all the same now to be there to prosecute this suit. If he professes to be a Matha-dhish, he should be at the principal seat. The property he is concerned with is ten times more in Uttar Pradesh. The plaintiff has no doubt a right to choose his forum but if the choice has been done with the mala fide object of harassing the defendants, that should not be permitted. See: David v. James Arthur AIR 1958 Kerala 82, and Firm Kanhaiyalal v. Sumerlal 1940 N L J 231=A I R 1940 Nag. 145. In the present case, the suit appears to have been filed with that intention. The normal attitude should have been to apply for substitution in Civil Suit No. 3 of 1963. That course was not adopted.
22. As indicated above, most of the witnesses would be from Uttar Pradesh to prove the custom governing succession to the Office of Shankara-charya and to prove installation ceremonies. Why whittle down their convenience simply because commissions to examine them could be issued. Their examination before the Court serves better purpose. Lot of expenses would be saved to the parties. The plaintiff non-applicant No. 1 has the assistance of a counsel from Allahabad, Dr. Ramshankar Dwivedi.
23. Having considered the convenience of both the parties and for other reasons aforesaid, I order transfer of Civil Suit No. 1-A of 1974 pending in the Court of District Judge, Seoni, to the District Judge, Allahabad, who may allot the suit for disposal to the Court trying pauper suit, Civil Suit No. 3 of 1963: Jagatguru Shankaracharya Jyotishpeethadhishwar Shri Swami Krishna Bodhashram v. Shri Ramji Tripathi and others, may hear it himself or transfer it to any other Court at Allahabad competent to hear it.
Costs to abide the final decision. Counsel's fee Rs.500.
Application allowed.
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