PREMDAS Vs. SHEOPRASAD

JUDGEMENT

(1.) 1. The plaintiffs sued the defendant who is the Mahant of a temple in Saugor on a mortgage whereby a village and a house belonging to the-temple were mortgaged with them when they were minors in the year 1914. It is admitted that Rs. 1,700 was- repaid by the defendant towards the amount of the mortgage-deed. The defendant was sued in the first instance in his-personal capacity on the ground that the mortgaged property was his own and, in the alternative, as a representative and manager of the temple should the property be found to be temple property. The trial Court found that the property did belong to the temple and that the-mortgage had been executed for legal necessity, a question which would not-have arisen had the property been that, of the defendant in his individual capacity, and gave a preliminary decree for sale. This finding was- upheld in first, appeal, and in second appeal by the defendant it is contended that legal necessity has not been established and that in any case (an argument is now advanced for the first time) no decree for sale should have been passed, but that the property should have been placed in the hands of a Receiver and that the decree should have been satisfied from the usufruct. In the beginning a half-hearted attempt was made to challenge the maintainability of the suit. This plea was not taken in either of the Courts below and finds no place in the memorandum of appeal and although there has been no dispute as to the proposition advanced that an idol is a "juristic entity" as stated by their Lordships of the Privy Council in the course of their decision in Pramdtha Nath Mullick v. Pradyumna Kumar Mullick AIR 1925 PC 139, there is nothing to prevent a Mahant being sued in his representative capacity as has been done here.

(2.) ON the questions as to the existence of legal necessity for the debt there can be no doubt that the legal necessity has been established. Of the sum advanced on the mortgage of 1914 part went to pay off a previous mortgage on the same property in favour of one Parmanand. The consideration for this mortgage went to pay a still earlier mortgage of the year 1894 where the consideration went to satisfy a yet earlier bond and money advanced for the purchase of grain and seed to be supplied to tenants. It cannot be disputed that the satisfaction of previous mortgages in order to prevent sale of the property constitutes legal necessity and there is no occasion to go back beyond the mortgage of Parmanand: Niladri Sahu v. Caturbhuj Das AIR 1926 PC 112. If it were necessary to consider the previous transactions, the recitals in the document of 1894 executed 40 years ago can be treated as cogent evidence of the correctness of the statements made therein: Banga Chandra Dhur v. Jagat Kishore Acharjya AIR 1916 PC 110 and Venkata Rddi v. Rani Saheba of Wadhwan AIR 1920 PC 64 It is admitted that in the year 1894 the Saugor District was in the grip of continuous famine and that takavi loans had been advanced to the temple for the purpose of supplying seed and grain, to its tenants. Of the consideration, advanced in the year 1914 a part. namely Rs. 1,000, is said to have been, spent for temple necessaries. It is not: disputed before me that the legitimate expenses of the temple would constitute legal necessity, but it is contended that there is no evidence to show that there was any need to borrow money for that purpose. The account books of the-temple which have been filed show clearly that the temple exchequer was empty on the date of the mortgage and that a sum of Rs. 1,000 was credited just after the execution of the mortgage, and the learned counsel for the appellant has been unable to show that the obvious conclusion which the trial Court reached on a perusal of the accounts is in any way incorrect. The legal necessity therefore has been established, and the decision of the lower Courts on this point is correct.

(3.) THE powers of a Mahant in dealing with the temple property have been held in Prosunna Kumari Debya v. Golabchund Baboo (1815) 2 IA 145. to be similar to those of a manager on behalf of an infant heir as defined in Hunoomanper-saud Panday v. Mt. Babooee Munraj Koonweree (1856) 6 MIA 393 and it seems to me that the form of the decree should depend in each case on the particular circumstances arising in it. I am in respectful agreement with the interpretation of Das, J., in Mahabir Das v. Jamuna Prasad Sahu AIR 1928 Pat 543, that their Lordships in Niladri Sahu v. Chaturbhuj Das AIR 1926 PC 112 do not lay down that a decree for realization of a debt from the usufruct ' is to be passed in every case. In the case before me the property mortgaged did not represent the original endowment and there is clear evidence on the record that the property was acquired by the temple piecemeal so far as the village was concerned and is analogous to a commercial investment for the purpose of increasing its resources. Similarly the house was built out of the temple funds. In the circumstances I do not consider that there is any necessity for safeguarding this particular property for the perpetual use of the temple at the expense of the plaintiffs who have advanced money on security and for legal necessity. I must accordingly decline to vary the form of the decree. The appeal accordingly fails and is dismissed with costs.