1. The papers will be remitted to the District Judge of South Malabar to report as to who is the proper legal representative. The report should be submitted within six weeks from this date, and the parties will be at liberty to file objections to the same within seven days after notice of the return of the same shall have been posted up in this Court. (Civil Misc. Petition No. 3863 of 1915 coming on for hearing on 4th February 1916, the Court (Seshagiri Aiyar, J.) made the following)

2. The District Judge of South Malabar will be requested to return a finding as to which of the contesting claimants is the legal representative of the deceased, respondent 1. Three months will be allowed for submitting the finding and ten days for filing objections.

3. (In compliance with the above orders the District Judge of South Malabar submitted the following.)

FINDING

4. Misc. Petns. Nos. 477, 484 of 1915, in Civil Misc. Appeal No. 13 of 1915 cover the same ground as Civil Misc. Petn. Nos. 3842, 3862 and 3863 of 1915 which have been remitted by the High Court to this Court for report as to who is the proper legal representative of the deceased appellant in appeal against appellate Order No. 21 of 1915 and Second Appeal No. 470 of 1913; and the issue framed between the parties is, who is the legal representative of the deceased Naduvilmadam Swamiyar alias Vishnu Bharathikal. It is admitted that the deceased was the head of the Naduvilai Mutt and died, in June 1915. The petitioner in Misc. Petn. No. 3862 is Rama Bharathikal alias Pallipat Swamiyar, and the petitioner in Misc. Petn. No. 3842 is Narayana Bharathikal alias Kappiyur Swamiyar.

5. I shall omit the titles and honorifics henceforward for the sake of brevity, with, of course, no disrespect to the parties or to the ancient institution which they claim to represent. It is admitted that Pallipat was ordained Sanyasi (if he was legally ordained at all) by Pazhedath in the lifetime of Vishnu before the ordination of Kappiyur. It is admitted that the senior Sanyasi succeeds to the headship of the mutt of P.W 1. There is thus no necessity for the successor to have been ordained by his immediate predecessor. Vishnu, who succeeded by Teikat was not ordained by Teikatbut by Subramani.

6. I do not gather that Kappiyur seriously disputes the power of Pazhedath to ordain. The sloka from the Sureswara. Smriti to which both sides evidently attach respect states, according to the rendering of P.W 6, that any Sanyasi can ordain with the blessing or consent of the other Sanyasis. The Alwancheri Tambiran, who is regarded as a great authority states (Ex. P), that all can ordain, and he has seen a junior performing ordination in the Tekke Mutt. P. Narayanan Somayajipad also says that any Sanyasi can ordain, Ex. H. So too Tirukaikat, K. Nambudiri, Ex. E. But Kappiyur contends that although any Sanyasi can ordain, in a spiritual sense, no junior Sanyasi who is member of a mutt; can ordain a fresh member to that mutt without the permission of the head of the mutt; and it is to this issue that the dispute between the parties is narrowed. I think it is agreed that in examining this position the best authority will be the custom and practice of the Nadu vilai Mutt itself. Next the customs of other Malabar mutts which are admittedly similar to each other and distinctive from East Coast Mutts. Lastly the general character of the order of Sanyasi. A mass of evidence has been let in to show that since June 1915 various persons have recognized one or other of the claimants, but their opinions, even where relevant, do not appear to me to be of much service as a guide.

7. The Naduvilai Mutt is true to its profession of ignoring the material word, in that it keeps neither record of its acts, nor roll of its members, nor register of its constitution. The institution claims to have continued uninterruptedly for 1200 years, and its history is a blank page. Kappiyur's witness 3 says that he made some attempt to discover the rule of succession by examining kanom documents. Apparently if the then head did not give his predecessor the appellation of Sri, he would presume that a junior and not his predecessor had ordained him. The kanom documents are not in evidence and I doubt if anything is to be gained by this line of enquiry. Vishnu who looked to Subramani as his Guru, would not necessarily have styled Teikat as Sri, yet Vishnu was not ordained by a junior. It may be taken, therefore, for the purposes of this case that there is nothing from the Naduvilai records which throws light on the question. There is no older authority in the mutt itself than that of the deceased Vishnu. A possible exception is Ex. G, an agreement between the then head of the mutt Teikat and Vishnu in which it is provided that a certain property shall be for the enjoyment of ‘those in future ordained by both of us for our succession.’, But I cannot find that the Malayalam affords any indication, whether it means, “both of us acting in agreement” or “each acting independently,” and this is exactly the point in dispute. With regard to Vishnu's own opinion in 1901 there was litigation in the Tiruikaikad Mutt, and Vishnu was served with certain interrogatories, Ex. 4 and stated that only the senior of a mutt can ordain. I am not sure that this can be taken as an absolutely unprejudiced, statement, for trouble was already brewing in his own mutt over this very question. According to Kappiyur's witness 3, Pezhedath had ordained one Polpakara Swamiyar as Sanyasi in about 1894–1895, and Vishnu had vetoed the ordination. Then in the Original Suit No. 6 of 191 Pazhedath joined with this Polpakara Swamiyar and attempted to remove Vishnu from the management of the mutt. Vishnu as defendant 1 filed the statement, Ex. 10 in which he says that Polpakara's ordination was not valid.

8. The suit was dismissed on legal points and this question of ordination was not then decided. Polpakara Swamiyar died. Then in 1903–1904 (Pallipat's 7th and Kappiyur's 3rd witness) Pazhedath ordained Pallipat and in Original Suit No. 346 of 1908 in Ponnani District Munsif's Court Vishnu put in a written statement Ex. 3-denying that Pallipat was a Swami of the mutt. At his own request, however, the question was not settled in that suit. (One of redemption in which the status of Pallipat was only indirectly involved). In 1906 it seems that Vishnu agreed to give maintenance to Pallipat (P.W 6). This circumstance alone would hardly validate an otherwise improper ordination, and that Vishnu did not intend it to be taken as such is clear from the above written statement dated 1908. I now come to the custom prevailing in other mutts on the West Coast. They are four in number. Besides the Naduvilai, the Tekke, Tirukaikad and Munjira-Mutts. In the 1901 Tirukaikad suit already mentioned interrogatories were served on the heads of the Tekke and the Munjira Mutts, Ex. 5 and 6. The head of the Tekke Mutt says that seniors and juniors with the consent of the seniors, can ordain, Ex. 5. The head of the same mutt is Pillipat's witness 2.

9. He says that they have a Sanyasi who was ordained by a junior now in the mutt. But he has not seen or heard of a junior ordaining without the permission of the senior. The junior can ordain, but the man so ordained will not be entitled to manage the mutt. In Ex. L he asked Pazhedath to ordain Pallipat, but he does not there suggest that the ordination should be without Vishnu's consent. The bead of the Munjira Mutt says that only the senior can ordain, Ex. 6. Pallipat's witness is the head of the Tirukaikad Mutt. He says that he himself was ordained by a junior and as a junior has ordained. The head of the mutt did not consent to his ordination, but consented later. He speaks rather vaguely on the subject. “It does not seem to me that a senior's permission is necessary. It is not done here.” A previous deposition of this witness is filed as Ex. E, but it adds nothing to the above. It is claimed on behalf of Pallipat that the Alwancheri Tambiran traverses the view that the senior's consent is necessary. I have already mentioned his statement Ex. E where he says that any Sanyasi may ordain. As Pallipat's witness 4 in this suit he says:

“In a mutt the senior Swami is the manager. The custom is that he is the Guru and the juniors are his disciples. Disciples can do nothing contrary to the wishes of the Guru. An ordination is valid with the junior's consent and opposed to that of the senior. Such a Sanyasi will be entitled to the property of the mutt. I say this on the understanding that the senior will not object.”

10. He says further that he was present at the ordination by a junior; but this does not carry the matter further since he admits that the senior was present at the time. On Kappiyur's side the Kotunigallur Raja who is an eminent Sanscrit scholar, deposes as witness 1 that the consent of the senior is necessary. I do not think that much is to be gained by referring to prehistoric poetry. Admittedly the Sureswara Smriti is prior to the institution of mutts, and rules laid down for Sanyasis before mutts existed are of little help in determining the constitution of a mutt. Nor do I attach importance to what happened last year after the death of Vishnu. Apparently owing to misapprehension of the word “inter meddling” in the definition of legal representative, the parties have let in a mass of evidence to show that one or the other performed acts of management after Vishnu's death such intermeddling might render them liable to claims on the estate, but it could never endow them with rights. Therefore the fact that they received or paid moneys or were assessed to income-tax, is not relevant. Nor is it relevant that the Travancore Government held a revenue inquiry to see who should be asked to perform certain services allotted by custom to the head of the Naduvilai mutt.

11. Therefore to determine the question whether a Sanyasi ordained without the permission of the head of a mutt can succeed to the management of that mutt, I turn first to the mutt itself. Vishnu Bharatikal, the last undisputed head, did not acknowledge the Pallipat claimant as his legal successor. If Vishnu's opinion was absolved from all mundane considerations I should accept it as final in the absence of other evidence from the Naduvilai Mutt. Vishnu, however, was involved in litigation with Pazhedath who ordained Pallipat. I, therefore, proceed to the other three mutts for evidence of custom. The head of the Manjira Mutt says that only the senior can ordain. The head of the Tekke Mutt says that even a junior may ordain, but the senior's permission is necessary if a man is to be ordained to the mutt with future rights of management. The head of the Tirukaikad Mutt inclined to think that a junior can ordain. The majority, therefore, is in favour of the position taken by Vishnu. It is argued that heads of mutts are naturally suspect on this question since they desire to keep the power in their own hands. I doubt if there is much force in this. If a man is not to be succeeded by his children when he dies, the power to appoint a successor is an empty privilege. But if the heads of the mutts have been striving since the origin of the institutions, to retain in their hands the right to consent to ordination to the mutt, then I should be inclined to hold that they have probably succeeded. Admittedly, they have power and authority as heads of the mutts and what they have earnestly desired through centuries has probably been achieved. Moreover, if the contrary view is to be taken and it is to be assumed that Sanyasis have followed primeval rules ignoring the mutt as a negligible encumbrance imposed on their estate by the importunity of their admirers, then two things might be expected. Firstly, the growth of the mutt would be unrestricted. Sanyasis would appoint other sanyasis in any place and at any time. But there is no trace of such banyan like exuberance; secondly, there would have been constant disputes as to succession; for sanyasis would be arriving from all quarters each disputing the date of the other's ordination. Yet there is no evidence of previous succession disputes in this mutt. I conclude, therefore, that there has been a controlling influence, and the most probable control is that of the head of the mutt.

12. The strongest authority to the contrary is the Alwancheri Tambiran; but even he concedes that the head of the mutt is as the Guru and his juniors are disciples, a position which postulates considerable controlling power. Then too he says that he speaks on the understanding that the senior will not object and he hardly seems to face the problem of what will happen if the senior does object. I think that the head of the Tekke Mutt has given the correct rule. Any Sanyasi whether senior or junior in his mutt can ordain another Sanyasi. But if he wishes to ordain to the mutt he must act with the permission of the senior of the mutt. I can find no evidence that Vishnu consented to Pallipat's ordination or recognized him as ordained to the mutt at any subsequent period. The maintenance allowance judged in the light of Ex. 3, can have been no more than a compromise arrangment for the sake of peace, and without prejudice. I, therefore, find that the legal representative of Vishnu Bharatikal is Narayana alias Kappiyur Bhartikal.

13. (These petitions coming on for final hearing on 23rd and 24th October 1916 after the return of the finding of the lower Court upon the issue referred by this Court for trial, and having stood over for consideration till this day the Court delivered the following judgment:)

Seshagiri Aiyar, J.:— In this case a subsidiary question, out of all proportion to the point involved in the civil miscellaneous appeal has arisen for decision. The suit out of which the civil miscellaneous second appeal has arisen was brought by Vishnu, the then head of a mutt, to evict a tenant. The amount of compensation payable to the tenant on eviction was the subject-matter of the appeal. Visnnu died after he preferred the appeal. Rival claimants to the headship of the mutt which possesses extensive properties have presented petitions to this Court to be added as legal representatives of the deceased plaintiff. These petitions were referred to the District Judge for report. It has been pointed out to us that a report or a finding of the District Judge is not contemplated by O. 22, R. 5 of the CPC. There is force in this contention. The rules requires the Court to which the petitions are presented to decide the question. Although it is anomalous that we should exercise the functions of a trial Judge on a matter of this description, the language of the rule gives us no option in the matter. At the same time it is clear that the Code does not compel us to record evidence ourselves. Under S. 107, Cl. (1)(d), it is open to us to direct the lower Court to take evidence and to submit the same to us. The learned vakils who appeared on both sides agreed that the evidence taken by the learned District Judge might be acted upon in this light. I shall, therefore, proceed to give my decision on that evidence, without taking into account the findings of fact at which the learned Judge has arrived.

14. Before proceeding further, I shall dispose of the objections taken to the admissibility of evidence recorded by the District Judge, and to the reception of documents tendered in this Court. As regards the latter, Mr. Rangachariar Bought to put in a certified copy of what purports to be a judgment of a District Munsif in support of his contention that a Sanyasin ordained by a junior swami can attain the headship of the mutt in dispute. No affidavit has been filed before us to explain why the copy was not tendered earlier, whether the judgment was set aside on appeal, and whether any reasonable attempt was made to procure it earlier. Even in this Court, no notice of an application to file it in evidence was given to the other side. The copy of the judgment is in Malayalam and no translation was appended to it. We have no hesitation in rejecting this document. Both Mr. Rangaohariar and Mr. Ramachandra Aiyar relied on portions of the answers obtained to interrogations served in the case. They are apparently admissible as against the party answering them under O. 11, R. 22. The answers are given on oath (vide Appx. C, Form 3 of the CPC). Although great caution should be exercised in using them as evidence, as pointed out by the Master of tho Rolls in Nash v. Layton(1), they are clearly admissible under the Code. As regards the answers to interrogatories in Original Suit No. 14 of 1901, on the file of the Court of the Subordinate Judge of Palghat, it was doubted in Queen-Empress v. Bamohandra Govind Earshe(2) whether under Section 33 of the Evidence Act, the fact that cross interrogatories were administered would satisfy the requirement that the opposite party “had the right and opportunity to cross examine.” We think it safe to admit these interrogatories also in evidence.

15. But these answers are open to the objection that they are not ante litem motam. In original Suit No. 14 of 1901, on the file of the Court of the Subordinate Judge of Palghat the question whether a junior can ordain was one of the facts in issue. That is also the question in this suit. The answers elicited show that while all the heads of the mutt who were interrogated were against any ordination by a junior, the junior swamis were in favour of such right. These answers were, therefore, given on a question which was the subject of active controversy at the time. Mr. Ramachandra Aiyar suggested that the words “before any controversy as to such right, custom or matter had arisen,” only referred to the dispute in the suit. This is clearly opposed to the decision in the Burkley Peerage case(3).

16. The section does not speak of the specific controvercy in the suit. We must, therefore, hold that Exs. 4, 5 and 6 are not of any evidentiary value. Then as regards Exs. V and W and other documents sought to be relied upon by Mr. Rangachariar, we have the statement of Mr. Ramachandra Aiyar who conducted the case before the District Judge that although they appear as Exhibits in the case, they were filed on the understanding that proof of the execution would be given at a later stage of the case. This statement is uncontradicted and we accept it. There is proof, in the records, of their execution. We must, therefore, reject them. The practice of exhibiting documents before they are proved should not be encouraged. We shall now proceed to deal with the facts of the case. The mutt in question along with three others is said to have been founded about 1200 years ago by Sri Sureswara Acharya Swamigal, one of the direct disciples of the great Sankaracharya. Two of the mutts are in Cochin, one in Travancore and the fourth in British India. The mutts have large endowments. Our attention has not been drawn to any interconnection between the mutts, and the position that they are mutts having similar usages as to the succession of the headship was not conceded. The mutt in dispute is known as the Naduvilai Mutt. For the purpose of determining which of the rival claimants is entitled to succeed to the headship, it is not necessary to go beyond the times of Subramania Swamigal. He died in 1891. He ordained two Sanyasis, Teikat Swami and Vishnu. Swami. Teikat succeeded Subramania, and died in 1894. Vishnu then became the head of the mutt. He died in June 1915.

17. Teikat, during his lifetime ordained one Pazhedath Swami as a sanyasi. This Pazhedath, who never attained to the headship of the mutt, ordained Pallipat, one of the rival claimants in this case, in 1904. Vishnu, who, as we said before, was then the head of the mutt, ordained Kappiyur Swami in the year 1906. This is the other claimant. The question is which of these two claimants is entitled to succeed Vishnu. The points requiring consideration in arriving at a decision are: (a) Whether during the life-time of the head of the mutt, a junior can ordain a sanyasi so as to make him a member of the mutt? (b) Whether, such an ordination, if it can be given, should be with the consent of the head? (c) Whether in this case such a consent was obtained? It is common ground that succession to headship in this mutt depends upon the number of Chatbur Masyams which a sanyasin had gone through. The chathur masyam as its name implies, is a ceremony which lasts four months. It is traceable to times when sanyasins were directed to live the lives of bikshus, moving from place to place in their endeavour to keep the grihastas to their true acharams and in enlightening them in the paths of virtue. An exception was made to this rule. For four months commencing with August, India has its monsoons. During this period the sanyasins were permitted to remain continuously in a particular place. The formula regulating chathur masyama is explained by Rishi Atri thus. The sanyasins addrsssing the people of the village says:

“There is difficulty in moving about owing to rains. The paths are infested by beasts and reptiles. Even God Vishnu is said to have taken rest from August to November. I shall also in the interest of the grihastas, remain in this place during these four months.”

18. Then the grihastas answer:

“Please remain here. We are highly honoured by this condescension. We shall try to serve you to the best of our ability.”

19. Thus the fixing of the seniority of a sanyasin by his chathur masyas only amounts to finding out the number of years during which he has had he Asramam. The Smritis enjoin that Sanyasins should render obeisance to those who have a larger number of chathur masyams to their credit.

20. All these injunctions relate to the period when mutts were unknown. But the mendicant Sanyasin has outgrown the Shastras. The personal sanctity of the Sanyasin, the purity of life and the sublimity of his teachings gathered round him the rich grihastas. These latter made offerings to the Sanyasin freely and generously. We have no doubt that these offerings were accepted by the holy men with a view to enable them to conduct worship of God, to minister to the wants of the lay disciples who resorted to them and to bring up a sufficient number of Sanyasins to continue the traditions of the Guru. To my mind, there is no doubt that while the devotees imposed no conditions and did not expect any accounting for the offerings they made, the offerings were accepted by the Guru not with a view to satisfy any personal want, but to meet the expenses necessitated by people resorting to him. These presents were sometimes in the shape of money, but often in the shape of landed property. It is in this way that mutts have come to possess property. Sir T. Muthuswami Aiyar in that monumental judgment of his in Qiyana Sambandha Pandara Sannadh v. Kandasami Tambiran(4) has traced the origin and history of such endowments. It is therefore, unnecssary to discuss the matter any further.

21. The same process seems to have been gone through with reference to the mutt with which we are dealing. But unlike the East Coast mutts, the rule of succession seems to have been based entirely upon the injunctions contained in the Smritis, that is to say, the title to headship does not depend upon nomination by the ruling head, nor on selection by the disciples, but solely upon the length of the period during which a person has been a Sanyasin. The West Coast mutts base their rule of succession upon ordinances which never contemplated the founding of mutts. It is typical of Malabar that this intense conservatism about succession should prevail there. The difficulty arises in reconciling this conservative rule with the suggested democratic principle that the Sanyasin who has the largest chathur masyams to his credit need not have been ordained by the head of the mutt. In other words the claim put forward by Mr. Rangachariar's client amounts to saying that a person ordained by any Sanyasin of the mutt, even against the wishes of the head, is entitled to succeed, provided he has had his sanyasin for a longer period than others. If the usage of the institution points to this rule of succession, we are bound to give effect to it, however unusual it may be. Their Lordships of the Judicial Committee have laid down in unmistakeable terms that it is usage that governs succession in these institutions: Ram Parkash Das v. Anand Das(5).

22. I shall now proceed to examine the evidence to see whether this usage has been made out. The first witness gives some general evidence. He says that anyone can give sanyasam; and the moment that anybody is ordained by a Sanyasi of the mutt, he becomes attached to the mutt. He speaks of the four mutts, as sister mutts. In cross-examination, he admitted that the usual practice in the mutt is for the Moothaswami (the head) to give sanyasin. As regard the one instance, he referred to, he stated that he had no personal knowledge about it. He also referred to proper and improper refusals by the head as entitling the junior to give sanyasam. This evidence is not of much practical value in deciding this case.

23. The evidence of the second witness is of a different kind. He is the head of the Tekke Mutt situated in close proximity to the Naduvilai Mutt. He gives one specific instance of a Sanyasin who had been ordained by a junior attaining to the headship of the mutt. In cross-examination it was elicited that the head of the mutt was present and consented to this ordination. One-can conceive of a case where, a junior from his personal experience regards an aspirant for sanyasi-ship as a desirable acquisition to the mutt. The senior might know nothing about him. In such a case, the senior might permit the junior to ordain the noviciate. There can be no objection to such a course. This is apparently what happened in the instance spoken of by the witness. In cross-examination the witness candidly admitted that he had no knowledge whether the practice of the junior ordaining a sanyasin prevailed in the Naduvilai Mutt.

24. P.W 3 is another important witness. He spoke to nine instances in which juniors had given sanyasam. When analysed, they come to this: of four of these ordinations, he had no personal knowledge. His evidence is not inconsistent with the theory that the consent of the then heads of the mutt might have been obtained for these sanyasams, if they in fact took place. He then referred to his own sanyasam. He first said that at the time of the sanyasam, the consent of the Moothaswami was not obtained. He qualified it by saying that the Moothaswamiar subsequently gave his consent. Thus in his own case, the sanyasams had the approval of the head of the mutt. He next referred to the sanyasams given by himself to four people. None of those people have attained to the Mootha Sthanam. Non constat, that their right to headship will not be contested. It is thus seen from an examination of his evidence, that he is not able to depose to a single instance where a person ordained by a junior without the consent, subsequent or previous, of the Moothaswami has been recognised as entitling the person to become the head of the mutt. He also said that his experience was confined to the affairs of his own mutt. P.W 4, who is a very rich jenmi, gives no tangible evidence. He says that he attended no ordination himself. The one instance he referred to was elicited to have been with the approval of the head of the mutt. P.W 5 does not give evidence on this question. P.W 6, another rich jenmi, says that the junior before giving sanyasam must obtain the consent of the Moothaswami. He speaks to other circumstances which will be referred to later on. The other witnesses give no specific evidence on this question.

25. Some documents were relied on. Ex. G is the most important of them. It speaks of “yathis who may in future be created by us both as our successors.” It is not a necessary inference from this statement that both the Mootha and the junior can indiscriminately ordain. It is consistent with the junior ordaining with the consent of the senior. Ex. 0 is an attempt by a neighbouring head of the mutt to interfere with the affairs of the Naduvilai mutt. We are not satisfied from the evidence above set out that the custom set up by the Pallipat Swami has been proved. Mr. Rangachariar relied upon a number of circumstances to show that his client was recognised as having a status in the mutt. One class of evidence related to the alleged receipt of maintenance from the mutt. There is the evidence of P.W 7 that be paid maintenance to Pallipat Swami, having received the same from the head Kariastan of the mutt. No account book kept in the mutt has been produced to support this statement. It has to be remembered that in 1903 Pazhedath sued to remove Vishnu from the Mootha Sthanam. It was at this time that Pallipat was ordained by Pazhedath. Polpakara who was ordained by Pazhedath became co-plaintiff. One witness, naively put it that this ordination was made with a view to the litigation being continued in case anything should happen to Pazhedath. Vishnu questioned the right of Palpakara to be jointed as co-plaintiff. Eventually, it was agreed that the right of Pallipat to be regarded as belonging to the mutt need not be decided in the suit. It is hardly likely under the circumstances that maintenance, as of right, was given by Vishnu to Pallipat. It may be that some allowance was given to him, seeing that he was inducted into sanyasam by a swami of the mutt; but I am not satisfied that any legal right was recognised.

26. The next circumstance relied on was the possession of some of the images of the mutt. When the headship is in dispute, it is no wonder that the subordinates joined one party or the other, and gave them possession of the sacred things of the mutt. We are clear that the evidence regarding the obeisance rendered by Kappiyur Swamiar to Pallipat Swamiar is not reliable. D.W 3 denies it, although P.W 7 asserts it. It is hardly likely that such a thing would have taken place. Some stress was laid upon an alleged recognition by the Travancore Government. In the important Vishnu temple in that kingdom, the ceremony of Puspanjali is performed by a swami of the Nudavilai Mutt. It was conceded by P.W 6 that it is not always the head of the mutt that the Travancore Durbar recognised as being entitled to this honour. As regards the Cochin Land Acquisition case, it is enough to say that it was concerned with a paltry sum of Rs. 20, and the right of Pallipat was apparently recognised by a subordinate official, after disputes had arisen. Our conclusion is that the applicant (Pallipat Swamiyar) has failed to establish that by the usage of the mutt a junior swami of the mutt can give sanyasam to a person which would enable him to become member of the mutt. It may be that with the express, implied or subsequent consent of the head of the mutt, the sanyasam may be recognised as conferring the right. Even that has not been proved in this case. It follows that the general practice spoken to by P. Ws 1 and 6 should prevail, namely that it is by the ordination by the head of the mutt that a sanyasin can become a member of that mutt. That is the practice which obtains in the East Coast in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran. No reasons have been shown why such a practice which is in consonance with justice should not be applied to mutts in the West Coast. We must, therefore, hold that the Pallipat Swamiyar is not entitled to come in as the legal representative of the deceased Vishnu Swami and that Kappiynr Swami who was admittedly ordained by Vishnu should be brought in the place of the latter. As the enquiry has been necessitated by the prevalence of inconsistent practices in the mutt, we think this is a fit case in which the costs of both the applicants could be directed to be paid out of the mutt estate.

Ayling, J.:— I concur.

S.N/R.K

27. Petition allowed.