NABAKISHORE DUTT Vs. JAGANNATH RAMANUJ DAS

JUDGEMENT

(1.) The defendants to this, are a mahant of a math in Cuttack and his natural father who was formerly his manager. In 1924 a suit was instituted on behalf of the math for recovery of possession of certain land on the allegation that the occupier of it was a benamidar of the mahant. The principal defendant in that litigation was Ichhabati Dibya, daughter of the brother of defendant 2. The suit was dismissed in the Court of the Subordinate Judge, and in 1926 an appeal from that decision was instituted. For the purpose obtaining court-fee for the memorandum of appeal and for petty miscellaneous expenses, defendant 2 in his capacity of agent for defendant 1, borrowed Rs. 400 from the plaintiff for which he gave a hand-note.

(2.) When the plaintiff instituted the suit with which we are here concerned for recovery of his dues, defendant 2 denied liability on the ground that he executed the hand-note as agent of defendant 1, and both he and defendant 1 denied that consideration passed, while defendant 1 also took the defence that the dedicated property could not be bound in the absence of legal necessity. The Munsif found that the consideration stated in the hand-note had passed and that defendant 2 had executed the hand-note as agent of defendant 1. Defendant 1 had stated that he had asked defendant 2 not to file the suit or the appeal, but the Munsif found that the statement was false, and that defendant 1 had himself taken part in the litigation.

(3.) The Munsif came to the conclusion that the litigation for which the money was borrowed was not of a speculative nature, that it was for the protection of the math property and he held, therefore, that the debt could be recovered from the dedicated property in possession of defendant 1. The Munsif's decree was set aside on appeal by the Subordinate Judge, Who affirmed generally his findings of fact, but held that the litigation for the expenses of which the loan was taken was of a speculative nature, and that therefore the math property could not be bound. The question was also raised before the Subordinate Judge of the power of defendant 1 to delegate his duties to defendant 2. It was made clear that defendant 2 was, for matters in general, the authorised agent of defendant 1, but the manner in which the power was conferred upon him wag not clear.