Lamshmindrathiratha Swamiar, minor by guardian ad litem Rajagopalacharya vs K. Raghavendra Rao

Sadasiva Aiyar, J.—The defendant is the appellant. The suit was brought for the recovery of Rs. 1500, and interest due thereon, on loans of

money advanced to the head of the Shirur Muttam, one of the 8 Udipi Muttams. The Swami to whom the loans were made is dead and the suit

was brought against his successor, the allegation in the plaint being that the debts were incurred for the benefit and necessities of the Mutt. The

plaint prayed that a decree should be passed directing the defendant to pay the sum due to the plaintiff out of the estate of the God Vittalar of the

defendant''s Muttam. The District Munsif found that, of the 76 items making up Ks. 1500 the third item was clearly proved to have been borrowed

for the necessities of the Muttam. As regards the other items making up of Rs. 1000 they were borrowed from him for the ordinary expenses of

the Muttam, but the creditor has not shown that the means then in the hands of the Matathipathi were not sufficient to meet those expenses. He

therefore gave a decree as regards Rs. 500 against the defendant as the representative of the Mattam to be recovered from the rents and profits of

the Mattam, but as regards the remaining Rs. 1000 and interest thereon he directed the defendant to pay it out of the assets of the predecessor in

his hands such assets, according to the District Munsif, consisting of income which accrued. due from the Mutt properties during the life time of the

defendants predecessor but not realised by that predecessor during his lifetime. The District Munsif informing such an opinion was guided by the

view of the law as it was understood in this Court prior to the decision in Ram Parkash Das v. Anand Das 81 M.L.J. 1 and Arunachelam Chatty v.

Venkatachalapathi Guruswamigal (1919) 37 M.L.J. 460 that view being that the head of a Mutt is the private and absolute owner of the income of

the Mutt accruing during his life time.

The learned District Judge on appeal was inclined to hold that the sum of Rs. 1000 made up of the items other than the. 3rd item, did not stand

on a lower footing than the 3rd item itself and that the District Munsif would have been ""Justified in holding"" that necessity had been proved for

borrowing these sums also. As, however, the plaintiff had not filed any memorandum of objections in The District Court the learned District Judge

contented himself with confirming the District Munsif''s decision.

In this Second Appeal, several points were argued, two of them were (1) that in the absence of any charge created by a trustee on the trust

properties for loans obtained by him, the creditor cannot obtain a decree making the trust properties liable; (2) that the finding that there was

necessity to borrow either the 3rd item or the other items was erroneous. (The other points argued by the appellant''s vakil need not be noticed as

they do not arise if he failed in the second point as he did in my opinion).

As I understand the District Judge''s Judgment he did not in arriving at his finding on the second point, lose sight of the consideration mentioned

in the decision in Nataraja Desikar v. Karutha Ravuthan (1910) 21 M.L.J. 129 viz., that it was not sufficient for the creditor to prove that the

moneys were borrowed for the purposes of the Mutt, but that it must also be found that there was an existing necessity for then incurring the debts,

that is, that the necessary expenses could not have been met out of the mutt funds then available to the trustee. The learned District Judge has

considered the evidence in the case which shows that the defendant''s predecessor was a prudent and honest man and has given weight to the fact

that the defendant was withholding the temple accounts ; and I cannot say that his finding of fact can be successfully attacked in second appeal.

Then the only question remaining for consideration is whether in a suit to recover simple money debts incurred by the Sanyasi head of an

institution the trust itself can be made liable and in considering this question, it is, of course immaterial whether the suit is brought during the life time

of the trustee who incurred it or against his successor. If his position was wholly analogous to that of an executor or an administator or the lay

trustee of a charitable or religious institution, the answer must be in the negative. See Swaminatha Aiyar v. Srinivasa Aiyar (1916) 32 M.L.J. 259.

Chidambaram Pillai v. Veerappa Chettiar (1917) 6 L.W. 640 and Parvathi Ammal v. Namagiri Ammal 6 L.W. 722. The principle underlying these

decisions is that such a trustee or other person in the position of trustee has got his personal credit to pledge and the presumption should be that

when he incurred a debt without charging the trust properties, the creditor lent the money on such personal credit and could look to that credit

alone and to the principle of subrogation for recovery of his loan. I think the same principle would apply even to an ordinary trustee of a temple

who is not a Sanyasi. But as regards Sanyasi trustees, a distinction has been suggested in the case in Shankar Bharati Swami v. Venkappa Naik

I.L.R.(1885) 9 Bom. 422. I shall quote the following sentence from page 425 : '' The case is as said to be similar to that of an executor contracting

a loan for the purposes of the estate by English law see Farhall v. Farhall (1871) 7 Ch. App. 128 or that of the manager of a charitable institution

incurring a liability for the purposes of the institution. Strickland v. Symons (1881) L.R. 26 Ch. Div. 245. It is sufficient for the present case to say

that those decisions are, in our opinion, inapplicable to the case of the Swami of a math, who presumably has no private property, and must,

therefore, be presumed to be pledging the credit of the muth when he borrows money for the purposes of the muth. That being so, the bond was

binding on the Savasthan, if the loan was for the purposes of the math, or the plaintiff had bonafide reason to suppose it was intended for such

purposes."" Again in Natarja Desikar v. Karutha Ravthan (1910) 21 M.L.J. 129. though the ultimate decision was in favour of the successor of the

Mutt who was the defendant in that case, the law laid down recognises that the loans incurred by the head of the Mutt for necessary purposes of

the Mutt can be treated as pledging the credit of the Mutt and as justifying a decree against the Mutt. I find from the back of the printed papers in

that case that Shankar Bharati Swami v. Venkappa Naik I.L.R(1885) . 9 Bom. 422 was cited before the learned Judges, and though the loans in

question in that case were obtained by the head of the Mutt through merely signing acknowledgments of the indebtedness in the plaintiff''s account-

books, the judgment proceeds on the footing that he thereby pledged the credit of the Mutt and not any personal credit of his. I am clear that a

Hindu Sanyasi has no personal credit whatever of a monetary or proprietory character and that it is a contradiction in terms to state that any loan

was made to a Sanyasi on his personal credit. I would therefore hold that the case in Swaminadha Aiyar v. Srinivasa Aiyar (1916) 32 M.L.J 259

and the other cases already referred to do not apply when the question of the liability of the Mutt or other institution for the debt incurred by a

Sanyasi as head of the institution comes into question.

In the result I would dismiss the second appeal with costs.

Spencer, J.

I agree with my learned brother in thinking that cases where the head of a Mutt borrows money for purposes binding on the Mutt without

showing any indication that her intends to make himself personally liable are distinguishable from cases of trustees borrowing money for purposes

of their trusts upon promissory notes. In all the cases relied upon by the appellant''s learned vakil, Swaminatha Aiyar v. Srinivasa Aiyar (1916) 32

M.L.J.259 and Chidmabaram Pillai v. Veemppa Chetti (1917) 6 L.W. 640 and Paravathi Ammal v. Namagiri Ammal (1917) 6 L.W. 722 there

were promissory notes executed by the trustees or executors concerned, and in the case of such promissory notes there is always a presumption

that the promisor intended to make himself personally liable (see Palaniappa Chettiar v. Shanmugam Chettiar I.L.R.(1918) Mad. 815 and this is

especially so when the trust which he represents is an inanimate object which has no personal liability of itself. To the cases quoted by my learned

brother I would add Srimath Deivasikemani Pandara Sannadhi v. Noor Mahomed Ravuthan (I.L.R. (1907) Mad. 471. All these are cases in

which the head of a Mutt either directly or by implication pledged the credit of the Mutt in incurring debts for purposes necessary for the

maintenance of the institution. In such cases there is no presumption that the head of the Mutt, Mahant, Swamiyar or whatever other title he may

possess intended to make himself personally liable. From this point of view, the decrees of the courts below were right and the second appeal

should be dismissed with costs.