Walmsley, J.:— The questions raised in this appeal are rather out of the ordinary, they relate to the right to succeed to a mohantship and to enjoy possession of the property belonging to the foundation.

The Appellant is the Plaintiff, Gobinda Ramanuj Das, commonly called Chhota Gobinda to distinguish him from another Gobinda, the Gobinda through whom the Defendant claims.

In the District of Midnapur there is a muth called the Nayaganj Bora Asthal; it has subordinate Asthals, one of them at Shyamchandpur. The Thakurs installed in the muth are Sri Sri Gopinath Jiu and Raghunath Jiu and the sheba is performed by members of the Ramanuj sect. Nothing, is known of the foundation of the muth. The earliest document on the record is one of 1841 by which one Nitai Singh gave various pieces of land to the then mohant Lachman for the purpose of carrying on the sheba of Sri Sri Gopinath Jiu, and of another Thakur Sri Sri Sitaram Jiu to be installed at Shyamchandpur.

Lachman was succeeded by Bharat Ramanuj Das, on the strength of a Will or a deed of nomination made in 1878. There was, so far as we know, no dispute about Bharat's succession.

In 1908 Bharat was growing old, and he then made a Will by which he appointed the Plaintiff as his principal chela and successor. He lived however for ten years longer, and a few days before his death, he made two documents, one in favour of the Plaintiff, the-other in favour of the other Gobinda, or Bara Gobinda as he is called: by the former he appointed Chhota Gobinda to be paricharak mohant of Shyamchandpur, while by the latter he appointed Barn Gobinda to be “gadinasliin mohant like myself.”

On the death of Bharat, Bara Gobinda applied to the Collector under the Registration Act for the entry of his name in place of Bharat's in regard to some of the property belonging to the muth. Chhota Gobinda objected, but afterwards—on 15th Magh 1325—the two executed mutual ekrarnamas, which for the time composed their differences. A year later on 18th February 1920 Bara Gobinda died, leaving a Will by which he appointed the first Defendant Ram Charan to be his principal chela and successor, and the Plaintiff's case is that Ram Charan with the help of Shyamal Das, his uncle, the second Defendant, and Brojo Mohan Das, the cook of the Nayaganj Asthal, the third Defendant, is keeping him out of possession of the properties of the muth.

The case for the defence is that any nomination made by Bharat in the deed of 1908 was cancelled by the later deeds of 1918, that the Plaintiff acquiesced in the arrangements made by Bharat's deeds of 1918, that Bara Gobinda succeeded to the gadinashin mohantship in accordance with Bharat's nomination of 1918, and that he in due course nominated the Defendant Ram Charan to the mohantship shortly before his death.

This narrative serves to set out the principal points of difference. For the Plaintiff it is contended that the nomination once made in 1908 could not be set aside by Bharat, that Bharat as a matter of fact did not know what he was doing when he executed the later deeds on the eve of his death, that the Plaintiff is not bound by his assent expressed in the ekrarnama of 1910, that Bara Gobinda did not really nominate Ram Charan and that if he made a deed nominating him he did not understand what he was doing, and lastly that the disposition made by Bharat in 1918 was invalid because it involved the division of the office, and the partition of property belonging to the muth.

Other questions were raised in the lower Court: for example it was said that Bara Gobinda was a leper and could never have become mohant, and that Plaintiff was disqualified by lameness. Nothing however was said before us, on those points, and I shall not allude to them further. The substantial questions are those that I have mentioned on the previous paragraph, and I shall confine my attention to them.

Nothing is known of the history of the muth: it may be very ancient but that does not matter: it was certainly in existence in 1841, and we have the fact that the mohant of that day was Lachman, and that Bharat succeeded him. It is common ground too that the muth is of the kind known as “mourashi,” that is to say, that within certain limits, each mohant designates his successor.

The case for the Plaintiff is that Bharat did nominate him by the deed of 1908, and this is not denied. Defendant says that nomination was revoked by the deeds of 1918. The question here is whether the power of nomination once exercised could be revoked. Plaintiff says that it could not be revoked and that under it he attained a position from which lie acquired the right of succession, that is to say, that the Will of 1908 nominated him as chief chela and that he became such, and is consequently entitled to succeed to the mohantship.

To take the latter point first, the Plaintiff is at this disadvantage that he cannot throw much light upon the rule of succession in this muth. The earliest evidence on this point is the deed executed by Lachman in favour of Bharat in 1878; but that document says nothing about Bharat being or, becoming chief chela: he is appointed to be mohant as the better of two “mantra sisyas.” As Lachman was mohant in the year 1841 oral evidence as to the practice of the muth before Bharat succeeded Lachman must in the nature of things be valueless.

Bharat's deeds and Bara Gobinda's deed are the only other pieces of evidence to be considered. In the 1908 document Bharat said: “You Sri Gobinda Ramanuj Da Rusuiya (cook) are pre-eminent among my chelas……. Having full confidence in you…. I do gladly and out of my free will appoint you as the chief chela according to the rules and customs laid down by my predecessor mohants and make you the malik and gadinashin mohant like me.” The same Bharat, however, in 1918 executed deeds which make no reference to any such rules and customs: to each Gobinda he said: “You are my chela and the object of my affection and there is another chela.”

It is clear that in 1918 Bharat claimed the right to nominate whom he pleased to the mohantship, subject only to the restriction that the person chosen must be a chela. I think therefore that the freedom of choice claimed by documents of 1918 negatives the suggestion contained in the 1908 document.

Bara Gobinda's document of 1920 deals with the point in this way. It rims: “I having at present got two chelas, one Jagannath Das, and the other yourself Ram Charan Das Rasuiya and out of the two you Ram Charan Das Rasuiya being the chief chela (pradhan chela bidhay) and having known you to be of good conduct, mild, good-natured and competent to manage all affairs, and knowing that the works of the deb shebas would be well managed and the properties relating to the deb shebas would be protected by you, I appoint you to be the mohant like myself.” Those words clearly mean that Ram Charan received the preference, in part, because he was the chief chela, but also in part on account of his competence and moral qualities. The allusion to a two-fold reason for the choice seems to indicate a recognition that the pradhan chela would ordinarily succeed, but not necessarily, and an assertion that the decision as to whether he should or should not succeed rests with the mohant.

Another line of argument on this subject was based on the use of the word “Rasuiya.” It is said that the chief chela became the official cook to the muth and enjoyed that honourable title. The documents support that view, Bharat called the Plaintiff Rasuiya in the document of 1908. In 1918 he gave the title to Bara Gobinda, but not to the Plaintiff, and Bara Gobinda in turn gave it to Ram Charan. It does not appear, however, that as Rasuiya the pradhan chela was in any better position. The conclusion to which I come therefore is that the Plaintiff has failed to prove that the chief chela had an absolute right of succession.

The other argument in connection with Bharat's deed of 1908 is that he exercised his power of nomination and had no right of revocation. The answer to this argument is that the document of 1908 was nothing but a Will: it is called a Will, and it was registered as a Will, and its terms are the terms of a Will, for it says: “By means of this Will I declare that the properties. … shall remain in my possession and control during my life-time…. On my death, etc.” As a Will it could be revoked, and I do not think that the clause appointing Chhota Gobinda to be chief chela could change the character of the document as a whole, and take from its maker the power of revocation.

My view therefore is that the arguments which the Plaintiff bases on the Will of 1908 must both be rejected. It was a Will and capable of being revoked. Assuming that it gave the Plaintiff the status of chief chela or recognised that he had that status it is not shown that as chief chela he had an unqualified right to succeed to the office of gadinashin mohant.

I should add here that no arguments were addressed to us on the Defendant's attack upon the Will as made under influence, or upon the alleged cancellation of the Will. The findings of the learned Subordinate Judge on those points therefore stand unchallenged.

The next argument is that the Court below is wrong in holding that the ekrarnamas estop the Plaintiff from “claiming the office of gadinashin mohant and denying the validity of the provision which empowered Bara Gobinda to nominate a successor from amongst his chelas.” The Judge's finding that the two documents of 1918 were executed by Bharat of his own free will is not questioned, so we are concerned only with the effect of the ekrarnama on the terms of the documents. The learned Judge thinks that the ekrarnama estops the Plaintiff from arguing that Bharat could not make the dispositions contained in those documents. This I think is wrong, for the reason that there is no evidence to show that as a result of the ekrarnamas Bara Gobinda was induced to alter his position. He gained an advantage, it is true, in that he succeeded to the office of gadinashin mohant, but that is a very different thing from altering his position. There is the further objection that if the disposition of 1918 was ultra vires as I think it was, no amount of acquiescence on the part of Chhota Gobinda could change its character.

Now, I come to what seems to me the principal question in the case, namely, whether Bharat's dispositions of 1918 were invalid. It is said that they were invalid because they split up the office of mohant, and because they involved a division of the properties. It seems to me clear that they did have these effects. We do not know what the arrangements were for carrying on the sheba at the subordinate Asthals, but it is quite clear that until Bharat died there was one mohant and only one. By his deeds of 1918 he created two mohants, a gadinashin mohant at Nayaganj and a paricharak mohant at Shyamchandpur; and this was not a temporary measure to end on the death of one; for to each was given the power of appointing successors. As for the properties, a considerable amount was cut away from the parent foundation, and given to Syamchandpur: it was made subject to a tribute of Rs. 100 a year, to be recovered by suit, but save for that payment the property attached to Shyamchandpur was completely separated from the muth at Nayaganj. Nothing but default in appointing a successor can ever restore the previous condition of things. The learned Subordinate Judge seems to think that the annual tribute sufficiently indicated that Shyamchandpur was dependent on Nayaganj. The learned pleader for Respondent put forward another argument, namely, that there was no division of the office because Bharat only arranged for one man to discharge one class of duties and the other another class. Neither explanation seems to me at all satisfactory. There are two mohants where there was one, and the mohant of Nayaganj has to be content to let the mohant of Shyamchandpur hold a considerable amount of the land belonging to the foundation. Such a result must be equivalent to partition of the office and of the property, and is, I think, contrary to Hindu law. In the case of Sethuramaswamiar v. Meraswamiar(1), their Lordships of the Judicial Committee said: “The headship of a muth is not a matter of partition.”

I think therefore that on this part of the case the Plaintiff's contention is correct, namely, that Bharat did attempt to make a partition of the office and of the property, and that to that extent at least his disposition of 1918 is void. The question then arises as to the result that follows from this view.

The two documents of 1918 were executed on the same day and they refer to one another, and they must be regarded as constituting one Will. Together they make an unlawful disposition, and they contain no other disposition. It is suggested that they should be regarded as valid to the extent that they nominate Bara Gobinda as gadinashin mohant and invalid only so far as they operate to cut down his powers and transfer some of the property to a second mohant. This view seems impossible for the reason that it ignores the obvious desire on Bharat's part to provide for Chhota Gobinda. A position of affluence and importance at Syamchandpur for Chhota Gobinda was part of Bharat's scheme. He tried to effect this by dividing the office and the property, and the gift to Bara Gobinda was only of part of the office and part of the property. I do not think that it would be reasonable to hold that because the part assigned to Bara Gobinda included the dignity of gadinashin mohant, that gift must prevail over the whole of the office and the whole of the property to the exclusion of Chhota Gobinda.

Next comes the question whether the inoperative Will contained in the documents of 1918 did as a fact revoke the earlier Will. (I have already said that we were not asked to reverse the Judge's finding about the alleged cancellation of the 1908 Will). The change in disposition is so great that I think the desire to revoke is a necessary inference, but the question arises whether Bharat had an unqualified desire to revoke, or whether he desired to revoke the first Will only if he could replace it by Will which would successfully effect the dispositions set out in the 1918 documents. I think it is clear that Bharat wanted to make a Will; he had no intention of dying intestate; his animus revocandi therefore had only a conditional existence, and the inference must be that the intention to revoke was not present. The result of this view is that the Plaintiff must succeed under the Will of 1908.

I may be disposed to think that the Plaintiff must succeed even if it be held that the Will of 1908 was revoked. The dispute between the parties must then be decided by the practice of the muth so far as we know it. I have already referred to the evidence bearing on the preferential position enjoyed by the pradhan chela. I think it is clear that Chhota Gobinda was the pradhan chela: the Will of 1908 nominates him as pradhan chela and it may be regarded as evidence that from that time forward he was in fact pradhan chela. He continued to be a chela for he is called such in the 1918 documents, and it is rather significant that those documents do not make use of the expression regarding either Gobinda, although Bara Gobinda in his Will describes Ram Charan as pradhan chela. The circumstances warrant the view that Chhota Gobinda was the pradhan chela at the time of Bharat's death, and in the absence of any valid disposition by the late mohant he is entitled to succeed to the office of mohant with the custody of the property.

My conclusion therefore is that the appeal should be allowed and the suit decreed with costs in both Courts. Let a decree be drawn up in terms of the first four prayers in the plaint. The Defendant No. 1 alone will be liable for the costs of the Plaintiff.

Page, J.:— I agree. As I apprehend the matter, the determination of this appeal mainly depends upon whether Bara Gobinda was validly appointed by Bharat the gadinashin mohant of the Nayaganj Asthal. It was conceded before us that the Will of 1908 and the two documents which comprised the Will of 1918 were duty executed, and that the terms thereof expressed the deliberate intention of a competent testator on the dates upon which the Wills were executed. The Appellant, however, contends that the 1908 Will must be taken to be the instrument by which Bharat's successor was appointed, while the first Respondent contends that the Will of 1908 was revoked by the Will of 1918, and that under the Will of 1918 he was validly nominated gadinashin mohant of the Asthal.

Now, in my opinion, the provisions of the Will of 1918 upon which the Respondent founds his claim to the gadi at Nayaganj were ultra vires and inoperative, and that in executing the two documents which together form the Will, Bharat was acting in violation of the constitution of the muth. According to Hindu law neither the office of a mohant nor the property of a muth can he the subject of partition. To hold otherwise would be to open the door to fraud and illegality, and would result in a rapid disintegration of religious foundations, and the dissipation of property settled in favour of muths and kindred institutions.

It is unnecessary in this case for the Court to consider whether a mohant is entitled, and if so, under what conditions, to create a muth subordinate to the muth of which he is the mohant; for, in my opinion, having regard to the language in which the Will of 1918 was couched, it cannot reasonably be contended that Bharat thereby effected the creation of a muth at Syamchandpur subordinate to the muth at Nayaganj: and yet it was upon this ground that the learned trial Judge held that the Will of 1918 was valid and intra vires. It is true that under the Will of 1918 an annual tribute of a hundred rupees was to be paid by the mohant of Syamchandpur into the gadi of Nayaganj. But in the Will it is also provided that the mohant at Syamchandpur should otherwise be independent of the mohant at Nayaganj, and that he should be entitled as malik of the muth to hold and administer the estates and property thereunder appropriated to the muth at Syamchandpur without interference by the mohani at Nayaganj. Nay more, it was provided that the line of succession of the mohants of Syamchandpur should be different from that of the mohants of Nayaganj, and that the newly appointed mohant of Syamchandpur was to “continue to own and hold possession of the said estates and property down to your chelas and parchelas in succession.” Now, in my opinion, by means of this instrument Bharat clearly and deliberately attempted to effect a partition of the office of mohant, and of the property dedicated to the muth at Nayaganj.

Babu Mohendra Nath Roy on behalf of the first Respondent on the assumption that the Will of 1918 operated in the manner which I have stated, admitted that pro tanto the Will was void and inoperative, but he contended that the proper course for the Court to adopt was to treat the appointment of Bara Gobinda as mohant of Nayaganj as valid, and to expunge the offending provisions of the Will. In my opinion, the Court would not be justified in treating the provisions of the Will in the manner suggested by the learned pleader for the Respondent, for the result would be to deprive the Appellant of any right to succeed Bharat as mohant. So to hold, in my judgment, would be to act in opposition to the intention of Bharat. I have no hesitation upon the evidence in holding that Bharat was not minded wholly to oust the Appellant from the mohantee. It is not an unreasonable inference to draw from the evidence that the importunities—and it may be the machinations—of Bara Gobinda and Shyamal Das, the uncle of the first Respondent, overbore the enfeebled Will of Bharat and that he was thereby prevailed upon to divide the mohantee and the property dedicated to the muth between Bara Gobinda and Chhota Gobinda. Be that as it may, in my opinion, the several provisions of the Will of 1918 must stand or fall together, and I hold the Will of 1918 to be ultra vires and void.

But it is urged that the Appellant by reason of his acquiescence in the scheme propounded by Bharat in his Will of 1918 is precluded from challenging the validity of the provisions of this Will. Now, the main issue in this case is whether the scheme laid down by Bharat in the Will of 1918 violated the constitution of the muth, and, in my opinion, the solution of that problem cannot depend upon whether a beneficiary under the illegal scheme acquiesced in the transaction.

The equitable doctrine of acquiescence may be taken to be that “if a party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence.” [Per Cottenham, Lord Chancellor, in Duke of Leeds v. Lord Amerst(2).] But acquiescence cannot rehabilitate or render valid a transaction which is ultra vires and illegal. Further, it must be borne in mind that estoppel by acquiescence connotes, among other things, that the person estopped in effect has represented to the person who is infringing his right that he is not entitled to complain that his right is being invaded, and that the party relying upon this representation has altered his position to his detriment under a mistaken impression that he was legally justified in acting as he had done. But, in my opinion, the doctrine has no application in the circumstances of this case, for not only must Bara Gobinda have known that any attempt to effect a partition of the muth would contravene the rules of his order, but there is no evidence whatever which would justify the Court in holding that either Bara Gobinda or the Respondent Ram Charan, relying upon any such representation by the Appellant, altered his position to his detriment, or at all. Bara Gobinda sat on the gadi at Nayaganj because he had been nominated mohant under the Will of 1918, and not because he was induced so to do by reason of any representation on the part of the Appellant. Further, in any event the Appellant did not acquiesce in the nomination of the first Respondent by Bsua Gobinda; on the contrary, he has consistently challenged its validity, in my opinion, there is no substance in the plea of estoppel, and it cannot be sustained. For these reasons, I am of opinion that Bara Gobinda was not duly nominated mohant by Bharat, and that the nomination of the first Respondent by Bara Gobinda is void and of no effect.

In these circumstances it became necessary to consider whether the Plaintiff has made out his claim to be the gadinashin mohant of the Nayaganj Asthal. He bases his claim upon two grounds: (1) That he was duly nominated by Bharat under the Will of 1908; (2) that he was the senior chela of Bharat. As regards the first ground, the Respondent contends that the Will of 1908 was revoked by the Will of 1918. It is, I think, clear that the provisions of the Will of 1918 are so inconsistent with those of the Will of 1908 that it must be taken that Bharat intended that the two Wills should not stand together, and that the nomination to the mohantee at Nayaganj and at Syamchandpur should supersede the nomination of the Appellant as mohant under the Will of 1908. [See Kent v. Kent(3).] But, in my opinion, Bharat did not intend that the Appellant, whom he had appointed senior chela, should in any event wholly lose the mohantee. I think that Bharat intended that the nomination of the Appellant under the Will of 1908 should be revoked only in the event of the nomination under the Will of 1918 proving to be valid and effective. He neither desired nor contemplated that he would the intestate and without having duly nominated a successor to the mohantee. In these circumstances, in my opinion, the provisions of the Will of 1918 effected merely a dependent relative revocation of the Will of 1908, and, the Will of 1918, being invalid and inoperative, the Will of 1908 must stand, and the Appellant who was appointed thereunder must be declared to be the mohant of Nayaganj. [See In the goods of Middleton(4) and Dancer v. Graft(5).] In my opinion, the same result would follow even if the Court were to hold that the Will of 1908 had been revoked. The muth at Nayaganj was a mourasi muth, and although it was not satisfactorily proved at the trial that it was in accordance with the rules of the muth at Nayaganj that the senior chela should succeed to the gadi on the death of the reigning mohant, it is consonant with the principles of Hindu law relating to a mourasi muth that the senior chela should succeed; a fortiori in the absence of a valid nomination by the reigning mohant. [See Mohunt Ramanuj Das v. Mohunt Devraj Das(6) and Ram Prakash Das v. Anand Das(7)].

Now, it is conceded that Bharat purported to appoint the Appellant senior chela under the Will of 1908, and there is evidence that thereafter he performed duties, such as, giving mantras and performing the punya ceremony, which strongly support the view that he was regarded as, and had been appointed, the senior chela in Bharat's life-time. I should add that whatever rights in respect of the mohantee the second Respondent may have possessed, he lost through his misconduct and his disobedience to Bharat. For these reasons, in my opinion, the appeal should be allowed and a decree passed in favour of the Appellant.

S.C.M