- 1 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 17TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 5048 OF 2008 (DEC/INJ) BETWEEN: SHREE BHOOTHABHUJANGA MUT REPTD. BY ITS RENUKA BHOOTHA BHUJANGA SHIVACHARYA SWAMYAYGALU, AGE: 30 YEARS, OCC. MAHASWAMIGALU, R/O. KOTTUR VILLAGE, TQ. KUDLIGI, DIST. BELLARY. …APPELLANT (BY SMT. PALLAVI PACHHAPURE, ADVOCATE FOR SRI. SRINAND A. PACHHAPURE, ADVOCATE) AND: B.M. VAMADEVAIAH S/O. B.M. ESHWARAYYA, AGE: 52 YEARS, OCC. SECRETARY CO-OP. SOCIETY, M.B. AYYANAHALLI, R/O. RAMPUR VILLAGE, TQ. KUDLIGI, DIST. BELAGAVI. …RESPONDENT (BY SRI. J.K. GURUBASAVARAJ, ADVOCATE FOR SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN RA.NO.38/2007 DATED 07-07-2008 PASSED BY THE COURT OF THE CIVIL JUDGE (SR. DN.) AT KUDLIGI AND CONFIRM JUDGMENT AND DECREE IN O.S.NO.30/2000 DATED 28.08.2007 PASSED BY THE COURT OF THE ADDITIONAL CIVIL JUDGE (JR.DN) KUDLIGI AND FURTHER PRAYS TO ALLOW THE ABOVE APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THIS RSA APPEAL, COMING ON FOR ARGUMENTS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.28 11:25:47 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Being aggrieved by the judgment and decree dated 07.07.2008 in R.A.No.38/2007 passed by the learned Civil Judge (Sr.Dn), Kudligi, the plaintiff in O.S.No.30/2000 on the file of the Civil Judge (Jr.Dn), Kudligi, is before this Court impugning the said judgment by which the suit of the plaintiff came to be dismissed reversing the judgment and decree passed by the Trial Court. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. At the time of admitting the appeal, this Court framed the following substantial questions of law: (1) Whether a married Mahanta can manage the Mutt or Mutt properties claiming to be so doing on the basis of a custom followed in the family, whereas no such custom was ever proved and therefore whether the lower appellate Court was justified in - 3 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 reversing the judgment and decree of the trial Court, which is a suit for declaration to declare that Ex.P1-Will, is null and void and that the defendant cannot claim any right, title and interest under this Will to act either as Mahanta or as Manager of the Mutt? (2) Whether the lower judge of the Appellate Court has understood the scope of law of Custom and whether the appellate Court is justified in reversing the judgment and decree based on the version of the defendant when nothing is proved by the defendant about the defence taken to the suit, etc., And also the following questions raised in the memorandum of appeal. (3) Whether the impugned judgment and decree passed contrary to evidence adduced by parties are sustainable in law? (4) Whether first appellate Court is right in misconstruing the Ex.P1 and holding that Will dated 01.04.1963 is acted upon by the respondent? - 4 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 (5) Whether first appellate Court is justified in overlooking the documentary evidence, i.e., Ex.P.1 to Ex.P.7? (6) Whether the first appellate Court is justified in considering the documentary and oral evidence? 4. The learned counsel Smt. Pallavi Pachchapure for learned counsel Sri.Srinanda Pachchapure appearing for the appellant and the learned counsel Sri.J.K.Gurubasavaraj for learned counsel Sri.Mallikarjunaswami B Hiremath, appearing for the respondent were heard. 5. The learned counsel appearing for the appellant would submit that the plaintiff Bhuta Bhujanga Mutt, Kottur is represented by Sri.Mahanta Renuka Bhuta Bhujanga Shivacharya Swamigalu. It is the case of the plaintiff that a suit was filed for declaration that the Will executed by deceased-Swamiji of Bhuta Bhujanga Mutt dated 01.04.1963 is null and void and for permanent injunction to restrain the defendant or any other person claiming under him from interfering with the management and peaceful possession and - 5 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 enjoyment of the property of the Mutt. It is submitted that the deceased-Swamiji of Bhuta Bhujanga Mutt had executed a Will on 01.04.1963 whereby the properties of the Mutt were bequeathed in favour of the defendant with a direction that he should continue to be the Mahanta of the said Mutt. The defendant was enjoined with the sacred duties of the Mahanta of the Mutt and therefore, he had to discharge his duties in accordance with the custom of the said Mutt, whereas the defendant, on his attaining majority, did not continue the tradition of Pattadhyaksha of the Mutt and he married and started working as a secretary in a Co-operative Society. Later, when the defendant started claiming individual rights in the properties bequeathed under the Will, the plaintiff-Mutt being represented by the Mahanta of the said Mutt had to file the present suit for the above reliefs. It is contended that the defendant had ceased to be the Mahanta Pattadhyaksha of the said Mutt and he failed to adhere to the customs and as such, he could not have acquired the title over the properties bequeathed to him. Therefore, the defendant cannot claim any right, title or interest under the Will to act either as Mahanta - 6 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 or as a manager of the Mutt. The Trial Court had rightly declared that the defendant is not entitled to receive any legacy under the Will and as such he was restrained from interfering with the possession of the property by the plaintiff. It is submitted that the First Appellate Court erred in holding that there was no such custom and therefore, the plaintiff is not entitled for any relief. It is contended that the First Appellate Court has overlooked the documentary evidence on record and the admissions given by the defendant in the cross-examination. It is contended that the plaintiff having been appointed as the Mahanta on the basis of nominations of Bhuta Bhujanga Mutt has become de-jure Mahanta of the said Mutt since his admission from 28.04.1985 and therefore, the First Appellate Court has misconstrued the Will at Ex.P1. She also placed reliance on the judgment of this Court dated 12.07.2024 in RSA No.7281/ 2010 between Sidlingayya S/o.Revayya (Dead) by LRs and Revanasiddayya S/o.Baslingayya (Dead) by LRs and others1. 1 NC: 2024: KHC-K:4887 - 7 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 6. Per contra, learned counsel appearing for the respondent submits that the prayer of the plaintiff is in the negative form. He contends that there is no evidence to show that the testator of the Will was the Mahanta of the Mutt and he had to practice the rituals as a Sanyasi or such customs. It is submitted that there is no such tradition in the family of the defendant that Mahanta should always to be an unmarried person and should look after the rituals of the Bhuta Bhujanga Mutt. It is submitted that the plaintiff seek to declare that the defendant has not acquired any right, title or interest on the basis of the Will and therefore, the First Appellate Court has rightly come to the conclusion that the plaintiff is not entitled for any relief. He points out that there is no material on record to show that the plaintiff is the Mathadhipathi/Pattadhyaksha of the Bhuta Bhujanga Mutt and the very locus standi of the plaintiff having been questioned by the defendant, it was necessary for the plaintiff to prove such locus standi and to prove the custom of the Mutt that the Pattadhyaksha should be a person who had renounced the material life. - 8 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 7. Let me consider the first and second substantial questions of law framed by this Court. 8. A perusal of the plaint would show that the plaintiff contends that he is the present Pattada Swamigalu installed according to the Veerashaiva Community of Bhuta Bhujanga Mutt and his name was Veeraiah S/o. R. M. Mahantaiah, R/o.Ramapur village in Kudligi Taluk. The plaint avers that the function and duties of the Mahanta is according to the customs and practice of the Mutt, which prevails and known to the family of the plaintiff and the defendant. It also avers that as per the customs and usages, the Mahanta or the head of the Mutt nominates his successor by appointing him, who has to succeed and act as per the authority given by the senior Swamiji or Mahanta of the Mutt during his lifetime. It also avers that there are certain formalities and customs, which needs to be followed by such nominee and he must be celibate and to lead his life as Sanyasi. It is stated that a married person or person who marry after his nomination, is not entitled to take Deeksha as Pattada Swamigalu. Further, the - 9 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 plaint avers that the testator of Bhuta Bhujanga Swami did not appoint anyone as a Swamiji to the Mutt during his lifetime but he executed a Will on 01.04.1963. As per the said Will, the defendant-Vamadeva Sharma @ Vamadevaiah S/o. Eshwaraiah, who was none else than the brother’s son of the testator, was to be his successor to manage the properties. After the said Will, the defendant attained majority and he married and has four children and he is also working as a secretary of M.B.Ayyanahalli, Co-operative Society. It avers that the devotees of Veerashaiva Community appointed Veeraiah as the Mahanta and his name was changed as Renuka Bhuta Bhujanga Shivacharya Swami. Such appointment was by one of the Mahanta of Pancha-Peeth i.e., Siddalinga Rajadeshikendra Shivacharya Swamigalu of Ujjaini. Therefore, the powers under the Will cannot be enforced by the defendant since he has not acted in accordance with the customs of the Mutt. It is on these grounds that the plaintiff seeks the relief mentioned supra. - 10 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 9. It is pertinent to note that in the written statement the defendant has denied the locus-standi of the plaintiff as the Mahanta of the Bhuta Bhujanga Mutt. He denies that the plaintiff became the Mahanta of the Mutt and he was nominated by one of the Swamiji of the Pancha-Peeth. However, he admits that he has married and working as a secretary in a Co-operative Society. It is his contention that he being the legatee under the Will, he is managing the property bequeathed to him under the Will and he has prosecuted litigations in HRC No.1/1992, O.S.No.72/1987 and several such other litigations concerning the property, which was bequeathed to him under the Will. Apart from that he also made a counter-claim to declare that he has got right of office to the said Mutt and he is entitled for permanent injunction against the plaintiff. 10. On the basis of the above contentions, the Trial Court had framed the following issues: - 11 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 1. Whether the plaintiff proves that he is appointed as Mahanth of the Bhutha Bhujanga Mutt, Kottur? 2. Whether the plaintiff proves that the Will dated 1.4.1964 is null and void and is not binding on the plaintiff? 3. Whether the plaintiff further proves that he is in possession and enjoyment of the above said Mutt as on the date of the suit? 4. Whether the defendant proves that there is no cause of action to file this suit? 5. Whether the defendant further proves that the suit is barred by limitation? 6. Whether the defendant proves that the public are not at all concerned with the affairs of the Mutt? 7. Whether the defendant further proves that oral partition took place long ago and in the said partition it was agreed that the successors of 1st wife of Mahanthajja by name Siddamma should become the Swamiji of the Mutt and the management of the Mutt should be in the hands of successors of Siddamma? - 12 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 8. To what reliefs the parties are entitled for? 9. What decree or order? 11. The Trial Court answered issue Nos.1 to 3 in the affirmative and did not answer issue Nos.4 to 7 and proceeded to decree the suit. Much of the discussions of the Trial Court is in respect of issue No.1. To answer Issue No.1 in the affirmative, it relied on the oral testimony of PW1 to PW3. It is relevant to note that the custom as contended by the plaintiff do not have support of any documentary evidence in this regard. There is no declaration of the custom that the plaintiff is contending. Therefore, it is the Will executed by the Pattadhyaksha of Bhuta Bhujanga Swami, which is at Ex.P1 that would prevail. A perusal of Ex.P1 reads as below. “¸À£ï 1963 £Éà ¬Ä²é K¦æïï MAzÀ£Éà vÉâAiÀÄ®Æè. §¼Áîj f¯Áè PÀÆrèV vÁ®ÆPÀÄ PÉÆlÆÖgÀÄ UÁæªÀÄzÀ «±ÉõÀ «ÃgÀ±ÉéêÀ PÀnÖêÀĤ »gÉêÀÄoÀzÀ ¥ÀmÁÖzsÀåPÀë ¨sÀÆvÀ ¨sÀÄdAUÀ ¸Áé«ÄUÀ¼ÀªÀgÁzÀ £ÁªÀÅ §gÀ¹(1)zÀ «®Äè£ÁªÉÄ K£ÉAzÀgÉÃ- £À£ÀUÉ ªÀAiÀĸÁìV(2) (3)zÉúÁgÉÆÃUÀå«®è¢gÀÄ ªÀÅzÀjAzÀ ªÀÄÄAzÉ PÉÆlÆÖgÀ°ègÀĪÀ ªÀÄoÀzÀ°è UÀÄgÀĸÁÜ£ÀzÀ £ÀªÀÄä ¥ÀƪÀðZÁgÀzÀAvÉ ªÀåªÀ¸ÉÜ dgÀÄUÀĪÀÅzÀPÁÌV ¸ÀzÀj FªÀÄoÀPÉÌ £ÀªÀÄä ªÀA±ÀdgÁzÀ PÀÆrèV vÁ®ÆPÀÄ gÁªÀÄ¥ÀÄgÀ - 13 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 UÁæªÀÄzÀ°ègÀĪÀ £À£Àß vÀªÀÄä£ÁzÀ (¯ÉÃmï) ªÀÄoÀzÀ F±ÀégÀAiÀÄå£À ªÀÄUÀ ªÉÄÊ£Àgï ªÁªÀÄzÉêÀ ±ÀªÀið£À£ÀÄß £À£Àß £ÀAvÀgÀ GvÀÛgÁ¢üPÁjAiÀiÁV FªÀÄoÀzÀ ¸ÀªÀĸÀÛ ¹ÜgÀZÀgÁ¹ÛUÀ½UÀÆ ºÀPÀÄÌ ¨ÁzsÀåvÉUÀ½UÀÆ ªÀÄvÀÄÛ ²µÁådð£ÉUÀÆ FvÀ£Éà ºÀPÀÄÌzÁgÀ£ÁVgÀ®Ä £ÉëĹgÀÄvÉÛãÉ. ¸ÀzÀjà ªÉÄÊ£Àgï ªÀiÁåeÁjnUÉ §gÀĪÀÅzÀgÉƼÀUÉ £Á£ÀÄ UÀw¹zÉÝà DzÀgÉ FªÀÄoÀPÉÌà ²µÀågÁV C¸À®Ä PÀgÉà (a)PÉÆlæUËqÀæ §¸À°AUÀ£ÀUËqÀgÀ ªÀÄUÀ PÉÆlæ §¸ÀªÀ£ÀUËqÀgÀÄ ¸ÀzÀjà ªÉÄÊ£ÀgÀÄ ¥ÀgÀªÁV UÁrðAiÀÄ£ï DVzÀÄÝ ¸ÀzÀjà ªÀÄoÀzÀ ªÀåªÀ¸ÉÜÃAiÀÄ£ÀÄß £ÉÆÃrPÉÆAqÀÄ ºÉÆÃUÀ®Ä £ÉëĹgÀÄvÉÛãÉ. F «°è£À°èAiÀÄ CA±ÀUÀ¼ÀÄ(b) £ÀªÀÄä vÀgÀĪÁAiÀÄ eÁjUÉ §gÀ¨ÉÃPÀÄ. £ÀªÀÄä fëvÀPÁ®zÀ°è EzÀ£ÀÄß gÀzÀÄÝ ¥Àr¸ÀĪÀ ºÀPÀÄÌ £ÀªÀÄäVzÉ »ÃUÉAzÀÄ £À£Àß RÄzÀÄÝ gÁf¬ÄAzÀ ªÀÄ£ÀªÀ¦à §gɹzÀ «¯ï £ÁªÉÄà ¸À».” 12. A perusal of the above testamentary disposition would show that in order to continue the tradition of the Mutt, the defendant is appointed as a successor. In case the testator dies prior to the defendant attaining majority, then he also appoints guardians for the defendant. Evidently, the Ex.P1 does not mention anything about the customs, which is prevailing. Nowhere it mentions that the Pattadhyaksha or the successor to the Mutt has to follow celibacy and he should be Sanyasi. Therefore, a custom as contended by the plaintiff will - 14 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 not get any support from the Ex.P1. It is worth to note that except the oral testimony of the PW2 and PW3, there is nothing on record, which would show that the Pattadhyaksha or the Mahanta of the said Mutt has to be an unmarried person and incase he marries, he would not be entitled to continue as the head of the said Mutt. This custom has not been established by the plaintiffs. Evidently, the PW2 and PW3 do not say anything about the said custom being followed since time immemorial. 13. The documents which are produced by the plaintiff are nothing but the revenue records of the property. Ex.P5 to 7 are the marriage invitation cards to show that certain marriages were performed in the presence of the plaintiff (PW1). Evidently, those documents neither show that the property was inherited by the successive Pattadhyakshas of the Mutt or the manner in which they were acquired by the Mutt. Therefore, it is evident that none of the documents produced by the plaintiff are of any relevance to establish the said custom, whereas the documents produced by the - 15 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 defendant show that he has been prosecuting HRC No.1/1992 and O.S.No.72/1987. It is also pertinent to note that as per Ex.D6, the plaintiff had filed a suit against the defendant in O.S.No.63/1995 seeking to declare that the plaintiff is the Pattada Swamigalu of the Mutt and to restrain the defendant or anybody else claiming under him with the peaceful possession and enjoyment of the Mutt and direct the defendant to deliver the possession of all the benefits received by him from the Education Department etc., The said suit came to be dismissed as not pressed on the basis of the memo filed by the plaintiff in Ex.D7 30.07.1996. 14. From perusal of the above documentary evidence available on record and from the testimony of PW1 to PW3 as well as the testimony of the DW1, it is clear that the plaintiff earlier had sought a declaration that he is the Mahanta of the Mutt and he did not press the said suit. Later in the year 2000 claiming himself to be the Mahanta of the Mutt seeks a declaration to nullify the Will and to restrain the defendant. This shows that when the defendant had denied the claim of - 16 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 the plaintiff that he is the Mahanta of the Mutt and the plaintiff having not pressed the suit in O.S.No.63/1995 as per Ex.D6, cannot again claim that the Will is void. It is evident that the plaintiff nowhere proved that, (a) he is the Pattadhyaksha of Bhuta Bhujanga Mutt, (b) the custom that the Pattadhipathi should practice celibacy. On the other hand the plaintiff had given up his claim in seeking the possession of the properties of the Mutt from the defendant. 15. In view of these aspects, it is evident that there was no such custom which would prove that the Peetadhipathi should be a Sanyasi. The defendant is not claiming himself to be Mahanta of the Mutt. He is only carrying on the duties as stated by the testator in his Will. Therefore, the First Appellate Court is justified in reversing the judgment and decree of the Trial Court, which is a suit for declaration to declare that the Will is null and void. The First Appellate Court was justified in doing so, particularly, in view of abandoning the earlier suit filed by the plaintiff in O.S.No.63/1995. - 17 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 16. The plaintiff is indirectly claiming title over the suit schedule property by seeking nullification of the Will. Evidently, the due execution of the Will is not in dispute. The fact that the testator was the Swamiji or a Sanyasi and that customarily the Mutt has to be headed by a Sanyasi and as such the defendant is disentitled to inherit anything under the Will for he having been married, is not proved by the plaintiff. Under these circumstances, the substantial question of law No.1 has to be answered in the affirmative. 17. It is worth to note that proving a custom requires cogent evidence. The testimony of the PW2 and PW3 do not inspire this Court to hold that there was any such custom, particularly, when Ex.D6 shows the family pedigree of the plaintiff and the defendant. Therefore, when the relief sought by the plaintiff in O.S.No.63/1995 (Ex.D6) is not pressed, he cannot jump to the conclusion and presumption that the said properties are the properties of the Mutt. In other words, it can safely be said that the frame of the suit is not correct, particularly when O.S.No.63/1995 was not pressed by the - 18 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 plaintiff. The plaintiff is presuming that the reliefs sought in O.S.No.63/1995 have been granted to him. Under these circumstances, the question No.2 is also answered in the affirmative. 18. The judgment relied by the learned counsel for the appellant in the case of Sidlingayya S/o.Revayya referred (supra) is based on the proof that the religious order, which was subject matter of the said case require that the Mathadhipathi has to be Sanyasi. The cross-examination of PW1 in that case refers to a custom which is prevailing at Mantralayam, where married persons are also permitted to enter the order of religious Mathadhipati. In the case on hand the genealogy mentioned in Ex.D6 also show that there are married persons in the family of the plaintiff and the defendant. Evidently, the custom is not established in the case on hand. Moreover, the plaintiff had given up his claim to prove his case that there was any such custom in present O.S.No.63/1995. In that view of the matter, the said judgment is inapplicable. - 19 - HC-KAR NC: 2025:KHC-D:14144 RSA No. 5048 of 2008 19. The substantial question Nos.3, 4, 5 and 6 are in respect of appreciation of the evidence on record. This Court has gone into those documents and has noted the probative value of those documents. Therefore, no interference is required in respect of conclusions reached by the First Appellate Court. Consequently, the appeal is devoid of any merits and the same is dismissed. 20. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. SD/- (C M JOSHI) JUDGE YAN CT:PA List No.: 1 Sl No.: 46