LAKSHMINDRA THIRTHA SWAMIAR OF SIRUR MUTT MINOR BY GUARDIAN AD LITEM P RAJAGOPALACHARYA Vs. VIBHUDAPRIYA THIRTHASWAMIAR OF ADMAR MUTT

JUDGEMENT

(1.) This is an appeal by the defendant against the decree of the Subordinate Judge of South Kanara in O.S. No. 44 of 1919 on his file. The suit was brought by the Swami of Admar Mutt in Udipi against the present Swami of the Sirur Mutt to recover from the assets of that Mutt the amount claimed to be due under a " Sampratipatti " or settlement of accounts signed by the late Swami and marked as Ex. A. The defendant denied the genuineness of Ex. A and the existence of the debt and the admissibility, of the document in evidence and he further pleaded that even if the debt was true it was not binding on the Mutt or its properties as it was not contracted for any necessity or benefit of the Mutt, the Mutt having ample income to meet all its legitimate expenses,

(2.) On these pleadings two issues were framed, namely, whether the patti sued on was true and valid and receivable in evidence and whether the debt was binding on the defendant's Mutt. The Subordinate Judge found both these issues in plaintiff's favour and gave him a decree as sued for. The appellant before us has not attacked the finding on the 1 issue; his learned vakil however contended that the finding on the 2nd issue should have been in the negative and in his client's favour and the suit should have been dismissed.

(3.) We have thus to consider in this appeal whether the debt sued on was borrowed by the late Swami of the Sirur Mutt for a purpose binding on the Mutt properties in his successor's hands. Now it is clear law that a Shebait or Matathipathi cannot alienate Mutt properties unless constrained to do so by unavoidable necessity and the same rule must apply to the creation of debts binding on Mutt properties, for the enforcement of such debts may result in the alienation of such properties through Court sale. The rule regarding alienation is laid down very clearly by the Privy Council in the recent case of Palaniappa Chetty V/s. Sreemath Devasikhamani Pandara Sannathi (1917) I.L.R. 40 Mad.709:33 M.L.J. 1 (P.C). Their Lordships refer to their previous decisions in Prosunno Kumari Debya V/s. Golabchand Baboo (1875) L.R. 2 I. A. 145; Koonwar Doorganath Roy V/s. Ram Chandersen (1876) I.L.R. 2Cal.341; and Hanooman-persaud Pandy V/s. Mussumat Babooee Munraj Koonwaree (1856) 6 M.I.A .393 and explain that the expression "benefit to the estate" as used in them though not capable of a precise definition meant" the preservation of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, and such like things " see page 718 Here we have no question of benefit to the estate but only whether there was necessity to incur the debt.