SUSIL CHANDRA SEN Vs. GOBIND CHANDRA DAS

JUDGEMENT

(1.) This is an appeal from a decree declaring that certain property is debutter property appertaining to Khairpur Math held and enjoyed by the idol Gopal Jiu and as such not liable to be sold in execution of a mortgage decree, and granting a permanent injunction restraining defendants 1 and 2, the appellants to this Court, from executing the mortgage decree against that property. In 1914 Baldeb Das, the Mahant of the math, borrowed Rupees 2,300 from the father (since deceased) of the appellants with a view to purchase some properties on a mortgage of the properties now in suit. The appellants brought a suit in 1927 to enforce this mortgage and obtained a preliminary decree. A final decree followed in due course, and when execution was taken out Gobind Chandra Das, chela of Mahant Baldeb Das, on behalf of Gopal Jiu, Thakur of the Khairpur Math, sued for the declaration and injunction already indicated, stating that he was bringing the suit because Baldeb Das had gone on pilgrimage three years previously and had neither returned nor been heard of since.

(2.) The suit was resisted on various grounds the defendants going so far as to attempt to prove that there was no such entry as Khairpur Math at all. These defences were all overruled and the suit was decreed. Defendants 1 and 2 appealed and the appeal was dismissed by the Additional Subordinate Judge of Cuttack. It has been urged on their behalf that the mortgaged property is not debutter but the personal property of Baldeb Das and therefore liable to be sold in execution of the mortgage decree. The learned advocate points out that while the plaint describes the plaintiff in terms suggesting that he had brought the suit on behalf of the idol Gopal Jiu, the property is referred to at more than one place as appertaining to the Khairpur Math, and that debutter property is property that is dedicated to an idol and is not the same as property appertaining to a math.

(3.) There are undoubtedly some differences between debutter property and property dedicated to a math, but the math in the present case at least has an idol installed in it and the plaintiff's allegation was that the math property was held and enjoyed by the idol, and it is clear that whether or not the property was dedicated to the idol, the property, if it appertains to the math, would not be the personal property of Baldeb Das or any other Mahant for the time being. The mortgaged property consists of two parts, one comprising an area of 11 acres odd which is described in Son. Ka, and the other with an area of 20 acres odd described in Schedule Kha. The former came to Baldeb Das under a so-called hibanama of 1892, while the latter was obtained by him by purchase in subsequent years.