MOHANT JAGARNATH DAS Vs. BIBI RUPA

JUDGEMENT

(1.) The subject-matter of the litigation which has given rise to this appeal is a parcel of 4 bighas of Fakirana land which admittedly formed part of the endowed properties belonging to the Panapur Math. It appears that Mohant Siaram Das, the spiritual head of this endowment, died on the 12th August 1905. Upon his death, disputes arose as to the succession to the office of Mohant, and on the 27th Jane 1906, these disputes were settled among three rival claimants by name Baldeo Das, Jagar Nath Das and Saligram Das. The parties agreed that Baldeo Das would continue to be the Mohant during his life-time and that upon his death, Jagar Nath Das would succeed as Mohant of the two Asthals at Panapur Nariar and Berhampura while Saligram Das would succeed as the Mohant of the Asthal at Chapra Rupnath. It was further arranged, that, daring the life-time of Baldeo, Jagar Nath would be joint manager with him in respect of the two Asthals to which he would be entitled to succeed upon his death, while Saligram would be the joint manager of the Asthal at Chapra Roopnath to which; he would be entitled ultimately to succeed. This ekrarnama was duly registered on the 27th June 19G6 and contained an express provision that Mohant Baldeo Das would not have any right of alienation of the properties of the endowment. The deed further recited that the properties of the endowment were subject to considerable ancestral debts, that is, debts incurred during the management of the preceding Mohants, that if payment of the said ancestral debts necessitated the sale of any property. Jagarnath and Saligram, by joining with Baldeo in execution of deeds of sale in respect of the properties appertaining to the Asthals at Panapur Nariar and Berhampura and Chapra Roopnath respectively, would pay off the ancestral debts, and that if Jagar Nath and Saligram did not join in the execution of the deeds of sale, Baldeo Das would be entitled, upou giving notice, to execute deeds of sale under his own signature and pay off the ancestral debts thereby. It appears that, on the 9th April 1907, Bildao Das executed a conveyance in favour of the defendant-respondent in respect of the disputed property. The plaintiff commenced this action on the 8th April 1908 for declaration that the transfer was void and that he was entitled to recover possession. The defendant resisted the claim on the ground that the transfer had been executed for justifying necessity and that she had consequently acquired an in defeasible title to the property transferred.

(2.) The Court of first instance found that out of the consideration-money of Rs. 830 paid for the conveyance, it had been established that Rs. 254 had been applied in satisfaction of a debt incurred to meet the expenses of the sradh ceremony of Mohant Siaram Das that, as to the remainder, there was no satisfactory evidence to show that it was needed for the benefit of the endowment. In this view, the Court of first instance gave a decree to the plaintiff for recovery of possession upon payment of Rs. 254 with interest thereon, Both parties were dissatisfied with this decision and appealed to the Subordinate Judge. The plaintiff contended that he was entitled to recover the property without payment of any sum at all. The defendant contended, on the other hand, that the plaintiff was not entitle to recover the property under any circum stances. The Subordinate Judge has affirmed the finding of the first Court that Rs. 254 was needed for payment of the debt incurred at the time of the sradh of Siaram Das. As regards the remainder, he has found that it was also needed to meet the expenses of the management of the endowment. Upon these findings, the Subordinate Judge has held that the whole of the consideration money was applied for the benefit of the endowment and that the plaintiff was consequently not entitled to impeach the title of the defendant.

(3.) The plaintiff has now appealed to this Court aid, on his behalf, the decision of trio Subordinate Judge has been assailed on three grounds, namely, first, that the finding of the Sub-Judge upon the question of necessity cannot be supported, inasmuch as he had erronously thrown the burden of proof upon the plaintiff; secondly, that the facts found do not show that there was any justifying necessity for the alienation and, thirdly, that even if there was any justifying necessity for the alienation, the transfer was void as it was in contravention of the provisions of the ekrarnamah by which the transferor was bound.