SHEODHAR MAHTON Vs. SITARAM MAHTON

JUDGEMENT

(1.) The facts leading to the presentation of this appeal, shortly stated, are these :

(2.) One Ramsaran Das was admittedly the Mahant of Dhoomnagur Math in the district of Champaron. After his death, one Basudeva Das claimed to have succeeded him as the Mahanth of the Math as being his only 'chela'. According to him, however, he was forcibly dispossessed from the Math as well as its properties by several persons, including one Tribeni Mahto, who were fill residents of village Dhoomnagar. Accordingly, the said Basudeva Das in 1949, filed a title suit, being Title Suit No. 61 of 1949, in the court of Subordinate Judge, Motihari against Tribeni Mahto and others, which was heard by the Additional Sub-ordinate Judge of that place. The defence taken by the defendant's, Tribeni Mahto and others, was that Basudeva Das was not the Mahanth of Dhoomnagar Math and that he was never in possession of the properties belonging to it. It was contended on their behalf that, after the death of Mahanth Ramsaran Das, his senior 'chela', Tulsi Das, became the Mahanth and he was in possession of the Math properties. It was also pleaded that the suit could not proceed in absence of the said Tulsi Das. Thereafter, the plaintiff Wasudeva Das added the said. Tulsi Das a party defendant in the suit, and the case of the plaintiff was that Tulsi Das was set-up by the defendants and he had no concern whatsoever with Mahanth Ramsaran Das or the Dhoomnagar Math. Tulsi Das, however, contested the suit on the ground that he was the Mahanth as being the senior 'chela' of Mahanth Ramsaran Das and that the plaintiff Basudeva Das was only a Karpardaz of the Math. An Ekrarnama purporting to have been executed by Basudeva Das was filed in the case to show that he was only a Karpardaz of the Math. The learned Additional Subordinate Judge found that Basudeva Das was forced to execute the Ekrarnama, referred to above, and that he was not the karpardaz of the Math. He also found that Tulsi Das was not the Mahanth and that the plaintiff Basudeva Das was the Mahanth of the Math as having succeeded Mahanth Ramsaran Das and was in possession of the Math properties. It was also found that Tulsi Das was a simpleton and was set up by others, and that the plaintiffs case of possession and dispossession was true. The title of the plaintiff Basudeva Das was, accordingly, declared and a decree for possession, with mesne profits, was passed against all the defendants, including the said Tribeni Mahto. The mesne profits having been ascertained in a separate proceeding, a decree for the same was passed, and that decree was later on assigned by the decree-holder on the 28th February, 1958 in favour of Sitaram Mahto, Nathuni Mahton and Ramji Mahton, respondents in this appeal, by a registered deed, who put the same in execution, in Execution. Case No. 17 of 1953 against Tribeni Mahto alone. On the 25th December, 1958. Tribeni Mahto died, and his son and grandsons who are the appellants in this court, were substituted in his place in the execution case on the 26th August, 1959. They took an objection to the execution of the decree as against them on the ground that the debt was 'Avyawaharika' and they had, therefore no pious obligation to pay the same, and the joint family property was not liable. The learned Additional Subordinate Judge overruled the objection by his order dated the 27th April, 1960 and held that the son and grandsons of Tribeni Mahto were bound to pay the mesne profits debt. They, therefore, filed the present appeal in this court.

(3.) The appeal first came up for hearing before a Single Judge of this Court who referred it to be heard by a Division Bench. Before the Division Bench, it was found that there were divergent decisions of this court on the point involved in the case which necessitated the decision of the same by a larger Bench. Accordingly, the following question of law was referred for decision by a Full Bench :