LALA MAN MOHAN DAS Vs. JANKI PRASAD

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Allahabad dated 16 September 1986 which reversed a decree of the Court of the Subordinate Judge at Allahabad dated 18 August 1934 and dismissed the plaintiff's suit with costs. The plaintiff-the appellant before the board - is a money-lender, and the appeal arises out of a suit instituted by him as a mortgagee of the suit property on a mortgage dated 4th December 1926 executed by defendants 1 to 3 - respondents 1 to 3 in this appeal. These defendants did not contest the suit. In the plaint, Janki Prasad, defendant 1, was described as "for self and as the 'mutwalli', manager and 'karkun" of Thakurdwara Sri Behariji Mahraj, installed in the temple situate in Mohalla Sarai Mir Khan, City Allahabad."

(2.) As this description did not say whether the deity, Sri Behariji Mahraj - hereinafter referred to as the deity or the idol-was or was not a party to the suit, and whether the plaintiff wanted a decree against Sri Behariji Mahraj, defendant 4, now respondent 4, Sri Behariji was made a party through the Receiver appointed by the District Judge in Suit No. 14 of 1932, a suit which had been filed by the plaintiffs in suit No. 85 of 1927, under S. 92, Civil P. C., to have Janki Prasad (respondent 1) and Gopi Nath removed from the mutwalliship of the idol. Attention will be drawn in the course of this judgment to these two suits. The original plaint was subsequently amended by the addition of para. (7) (A) which is as follows: (7) (A) "That Janki Prasad, defendant 1, did not in the mortgage deed sued on, write himself as the 'mutwalli', manager and 'karkun', of the Thakurdwara of Sri Behariji Mahraj installed in the temple situate in Mohalla Sarai Mir Khan, even then as the amount of consideration of the mortgage deed was paid for the protection of the property of Sri Behariji Mahraj, defendant 4, and as defendant 1 is the 'mutwalli', manager, 'karkun' of Sri Behariji Maharaj it is also binding on the Thakurdwara of Sri Behariji Mahraj installed in the temple situate in Mohalla Sarai Mir Khan, City Allahabad, Sri Behariji Mahraj has been made a party to the suit."

(3.) Later, on 22 February, 1934, the plaint was further amended alleging that defendants 1 to 3 (respondents 1 to 3) were the owners of the property in suit. A written statement was filed by the Receiver on behalf of the idol. Therein it was stated that Janki Prasad (respondent 1) could not and did not properly safeguard the interests "of the idol; that the mortgage is not binding on the idol as it was executed by Janki Prasad as the owner of the property; that assuming there was a debt binding on the idol, Janki Prasad and other trustees were bound to pay it out of the income of the trust property which was sufficient to pay for the debt;" and that the property of the idol was not in danger of being sold nor could it be sold in execution. The main question in this appeal is, whether on the facts herein set forth the appellant is entitled to a mortgage decree which will be binding on the idol, respondent 4. The facts giving rise to this litigation may be summarised as follows: In 1865, one Jagannath died childless leaving his widow Lalti Bibi and two items of properties, referred to in the suit as Nos. 14 and 15. Property No. 14 is the subject-matter of the suit mortgage. It consisted of four shops in Chowk Allahabad. In 1894, Lalti Bibi applied to the Allahabad Municipality for permission to reconstruct item No. 15 as a temple. The permission was granted. On 15 July 1895 she mortgaged property No. 14 for Rs. 3000 to reconstruct the temple. On 7 July 1903 Lalti Bibi executed a "will" by which she dedicated certain properties including property No. 14 to the idol, Sri Behariji Mahraj, and appointed executors and trustees for the purpose of carrying out the objects mentioned in the "will". The "will" recited that she had been empowered by her husband to make the dedication of the properties. On 4 March 1907, she executed another "will" similar in terms to the first, but appointing different executors and trustees, namely, Janki Prasad (respondent 1), Gopi Nath, and Jugal Kishore. Janki Prasad was appointed managing trustee. The "will" stated that she had received the properties by right of inheritance from her husband, that she had constituted the idol the owner of the properties after her death, and that none of the managers should deal with the properties for their own purpose or benefit. On 11 July 1907 Lalti Bibi mortgaged the property No. 14 for Rs. 4000 to another idol, Sri Thakurji through its managers, including one Kishan Lal and Janki Prasad, and paid off the mortgage of 15 July 1895. On 25 November 1908, Lalti Bibi died.