JUDGMENT
Jaganmohan Reddy, J.
1. This appeal involves the determination of the question whether the 2nd defendant, Venkatarao Datar, retired Deputy Secretary to the Government of Hyderabad in the Finance Department, had become a Sanyasi after due performance of the ceremonies necessary for this purpose on the 17th Sherewar. 1346F and whether notwithstanding the fact of his becoming a Sanyasi, which in law is deemed to be a civil death, he executed a will on 1st Meher, 1356F., by which he gave the suit house to the 3rd defendant, his grand-son Murlidhar, son of the plaintiff, Ramakrishen.
2. It may be stated, that 2nd defendant has two sons, the plaintiff and the 1st defendant. The Plaintiff alleged that his father, the 2nd defendant after ceasing to have any interest in the affairs of the world,. divided the properties between the members of the family on the 17th Sherewar, 1346F, and executed a memorandum of partition on the same day. In pursuance of this partition, the 2nd defendant put them in possession of the moveable and immoveable properties, renounced the world and took the vows of a Sanyasi. After a few months, at the instance of the father-in-law of the 1st defendant, who is a lawyer, another list of the properties was executed on the 8th Aban 134GF. by himself and the 1st defendant in which the properties which are in the possession of the plaintiff and the 1st defendant as also the fact of the prior partition were mentioned. The paintiff further averred that the suit house No. 3113-B situate in Gowliguda had been allotted to his share and had since the partition been in possession of the same; that since the two houses which were allotted to the share of the 1st defendant were already rented out and the 1st defendant had no place to live in, he expressed a desire to live in that house temporarily and consequently the plain-tiff permitted him to reside in one portion of the house; that the 2nd defendant was also living in one of the rooms as a Sanyasi with the permission of the plaintiff; that the 1st defendant on the 17th Sherewar, 1356F, mala fide refused to vacate the house and apprehending a suit against him by the plaintiff for ejectment the defendants conspired and brought into existence a document on the 1st Meher, 1356F, calling it a will, even though partition had taken place as long ago as 1346F. In these circumstances, it is stated that the 2nd defendant had no right to execute any such document, nor could he do so by reason of his becoming a Sanyasi, which fact also deprived him of rights in his property, and consequently the recital in the will that the suit house was given to his son, Murlidhar, the 3rd defendant has no validity or effect against the plaintiff. The plaintiff, therefore, prayed for cancellation of the will dated 1st Mehar, 1356F, which cast a cloud on his title to the house, for ejectment of the defendants therefrom and for possession thereof.
(After setting out the contentions of the defendants, the issues and the evidence, which are not material for the purpose of this Report the judgment proceeded:)
3-12. The next question is that which deals with the 2nd defendant becoming a Sanyasi after duo performance of ceremonies on the 17th of Sherewar 1346F. The evidence relating to this aspect of the case consists of the depositions, apart from the plaintiff as P. W. 3, of Ramachandra Rao P. W. 1 and two Purohits. Satyanarayana Sastri, P. W. 2 and Subramanya Sastri P. W. 4 who are from Godavari District. The 2nd defendant asserts that he has merely changed his clothes in accordance with a vow taken by him on the Mathaji recovering from illness and has not ceased to take interest in his properties or the affairs of the world, as suggested by the plaintiff, nor did he have such an intention at any time.
He further stated that he was the head of the family, that he used to keep accounts even after he had changed his dress, that he paid the expenses for the maintenance of the family, that he wrote a took “Nectar of Grace”, which is a translation of the Rubayat by Omar Qayam and was obtaining royalties therefrom and that on the day when he was alleged to have become a Sanyasi he had a cash balance of Rs. 10,000 in the bank and had not divested himself of all properties. He further asserted that he has been living in the house with his family as before1 and that he did not give the house to his son, but lived in it as the owner thereof and that the suit of the plaintiff was a false one.
In cross-examination of this witness, no suggestion was made that the ceremonies were performed by P. Ws. 2 and 4. Some general questions were asked about the ceremonies required tor becoming a Sanyasi in reply to which he stated that the process of becoming a Sanyasi takes nearly 44 days involving Sudhi, the performance of eight shraddhas, Vraja Homan and the holy both in the-river Ganga etc. all of which he did not perform. In his will Ex. 2 also he says much the same thing about his becoming a devotee of one Mathaji, his taking a vow he would change his clothes and serve her if she recovered frcm her illness, his-keeping that vow after she recovered, his dividing, some of his properties and thereafter his having served the Matliaji. He no doubt says in that will that this manner of taking Sanyasa is said to be Kutichak. The question is whether the 2nd defendant took the vow of a Sanyasi after due performance of ceremonies.
13. In so far as the evidence of the Purohits Is concerned, a mere reading of it is sufficient to discard them. It is contended that it is difficult to understand why these two Purohits who are brothers belonging to the Godavari District of Andhra were chosen and brought for performing the ceremonies when so many purohits were available in Gowliguda, and that when the family was a Maharastrian family, Maharastrian putohits could have been employed for this purpose. In our view, there is force in this contention. The 2nd defendant was a man of repute in the Hyderabad State and was acknowledged to be a scholar, in Persian, Arabic and Sanskrit, besides being an expert in financial matters and the preparation of the budget.
He was well respected and well known in-governmental circles. If an important event in his life such as his entering the fourth ashram of the Hindu Dharma, were to take place, it would have been attended by many persons in power and ot influence. On the admitted story of the plaintiff himself, no persons of any status attended the ceremony. It is said that the 2nd defendant took the vow of an Atur Sanyasi, which is only taken at the time when the person is seriously ill and contemplates death.
The fact that elahorate ceremonies are alleged to have been performed by P. Ws. 2 and 4, does not support the case of the 2nd defendant taking the vows of an Atur Sanyasi, The Jabalopanishad allowed sanyasa to those even, who are suffering from disease and are about to die, all that is required being that they should declare in words: and resolve in their mind to enter the order of sanyasa. No extensive ceremonial is required. In Kane’s History of Dharamasastra, Volume II, Part II, page 963 it is observed that “Angiras and Sumanta quoted in Sm. M. (pp. 174 and 1S2) stated “when a man is shattered by old age or harassed by his enemies or is suffering from (an uncurable) disease he may resort to Sanyasa bv merely uttering the Praisa, and no further rites would be absolutely necessary. He should recite thrice in the morning, at noon and in the evening :
‘I have given up everything or entered upon-Sanyasa’ and further say ‘I foreswear whatever action I may have done through ignorance, indolence or carelessness; I shall cause no harm to creatures with my hands or feet, with my speech, body or mind; may all creatures have no fear from me’. The Dharmasindhu says that in this sanyasa for those at the door of death the absolutely essential elements are the resolve (Sankalpa), the uttering of the Praisa and the giving of the promise of non-injury and the rest of the rites may or may not be performed according to circumstances. Even now such a sanyasa, called Atursanyasa, is sometimes resorted to by religious minded men in extremis, the only essential gone through being Sankalpa (declaration of resolve), Kasaura (tonsure of the head) Savitripravesa and Praisoccara (utterance of Praisa). “Manu says in Verse 39 Chap. VI, having performed Ishti, sacred to the .Lord of Creatures (Prajapati) where the gives) all his property as the sacrificial fee having deposited the sacred fires in himself a Brahman may depart from his house (as an ascetic).”
The requirement for the initiation of a Brahmin as a sanyasi is that he should perform the eight shraddhas or even twelve according to some. These eight shraddhas are to Devas, Rishis, Divyas, Manushas, the Bhntas, Pitrus, Matrus and oneself. The performance of Jeeva Shmddham or Atma Shraddham is the last of the first preliminaries after which civil death takes place, though according to some this is not necessary. Some say that he should also perform the Prajapati sacrifice which involves the making over of all the wealth one possesses. He should also make obeisance to the learned Brahmins and invoke their blessings.
Then, performing the purification ceremony he should shave himself and bathe duly. He should then give up all his property, excepting or reserving the articles relating to the sacrifice etc. to his sons etc. and placing the staff etc. should stand in a temple, road or other place, do homage to the divine (Vedas) and sip water. He should then recite the Trivrit Prasanna Mantram, after which there is no turning back. He should then perform the Presha Mantram which is the renunciation of the world, his family, his children and his property etc.
14. The essentials of initiation into sanyasa are the desire to give up his wife, sons and property and to devote himself to the life of an ascetic, that is, he must give up Putreshana, Vitteshana, Lokeshana and take up to Bikshacheriam. This renunciation involves certain ceremonies, the performance of which is essential for the entry of a person into the fourth ashram, the Sanyasa Ashram, which when entered is irrevocable, causing his civil death. It may also be stated that the initiation by a Guru is an essential element in the change of ashram. Unless these essentials are proved to have been performed, the mere fact that a person puts on the clothes of a sanyasi or removes his sacred thread, or his being described as such by others that he has retired from wordly affairs, docs not by itself make him a sanyasi. See also Kondel Row v. Swamuluvaru AIR 1918 Mad 402: Baldeo Parshad v. Arya Pratinidhi Sabha, AIR 1930 All 643 and Satyanaravana Avadhani v. Hindu Religious Endowments Board, AIR 1957 Andh Pra 824.
15. Applying these principles, we now propose to examine the evidence. (After discussion of evidence the judgment proceeds:)
It is apparent from this evidence that the 2nd defendant did not leave his house or the city after he became a sanyasi, hut it is argued that he was a Kutichak sanyasi which was one of the forms ot Sanyasa. It is true that ascetics are divided into four classes, which according to the Mahabharata (Anusasana 141, 89) are Kutichaka, Bahudaka, Hamsa and Paramahamsa, each later one being superior to each preceding one. But to which of these classes a sanyasi belongs depends on his Acharana, or the path he treads after he becomes a sanyasi.
16. We agree with the trial Judge in holding that the evidence does not establish that any ceremonies were performed for initiating the 2nd defendant into Sanyasa Ashram, nor did the 2nd defendant become a Sanyasi. On the other hand, it is dear from the bank accounts of the relevant! period (Ex. 44/1) that the 2nd defendant had a balance of Rs. 10,294-0-1 on the 23rd of July 1937, that he maintained the accounts thereafter receiving interest on securities and pension regularly and operating on those accounts. After the 17th of Sherrewar, 1346F., he published a book ‘Nectar of Grace’, a perusal of which would show that it could not have been undertaken by a Sanyasi, because any translation or treatise of Omar Qayam would, involve the application and engagement of his mind to, the mundane and worldly affairs.
There is also evidence in this case that he was looking after tho household accounts, that he was paying for the maintenance of the house and was even paying rent to Murlidhar the 3rd defendant. The result is the plaintiff has been unable to establish his case that the 2nd defendant has become a sanyasi and is incapable of making a will A perusal of the will would show that he dealt with both his sons and grandson with fairness. The plaintiff was given Rs. 31500/- and gave, to his son, Murlidhar, the suit house. To his second son her also gave Rs. 31,500/- worth of promissory note and the tiled house and a land and bungalow in Chunchelguda.
17. Two C. M. Ps. were filed to admit additional evidence, namely, a biography of Venkata Rao Datar (2nd defendant) written by Chintanian Nilkant Joshi, a copy of which was, however, not filed, and the other is to admit the pictures of the funeral of the 2nd defendant. This evidence, it is stated is necessary to show that the second defendant was described as a sanyasi and was buried as a sanyasi and not cremated. While the nature of the evidence contained in the biography cannot be ascertained as the book has not been filed, the photographs taken at the time of tho funeral are self-serving documents of the ceremony in which the plaintiff as the son took part.
Besides this, under Order 41, Rule 27 the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one, bub if an examination of the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made outside the Court, of fresh evidence and an application is made to import it, it can be admitted. Additional evidence can only he permitted if the case cannot be determined without taking into consideration the additional evidence sought to be adduced. Vide Arjan Singh v. Kartar Singh, . In this view of the matter the C. M. Ps. as well as the appeal are dismissed with costs.
