Mahanth Ramsaroop Dass vs Ramrachhaya Prasad Singh @ Harangi Singh

Manohar Lall, J.—In this appeal by the plaintiff the principal questions for consideration are whether an alienation by a previous mahant for raising funds to a thatched temple into a pucca one can be supported as being for legal necessity, and whether the suit is barred by limitation.

The facts are these. About eighty years ago, one Sunder Das, a devout sadhu of the Ramanuji Baishnab sect, came to village Barhi with his chela or Gurubhai Gopal Das. He constructed a hut on a piece of parti land in Gour quarter of this village and lived there for a few years. On the death of his Guru-bhari, who was the mahant of an asthal at Mokamah, Sundar Das became the mahant of that asthal and accordingly went over to live at Mokamah coming to Barhi only occasionally. The small asthal which Sundar Das had founded at Barhi was entrusted by him to the care fend charge of Gopal Das. In his lifetime Mahant Sundar Das as well as Mahant Gopal Das acquired considerable property for the asthal in village Barhi. Mahanth Gopal Das also founded-a dependant asthal in English quarter of the village, one mile distant from Gour, and both these asthals were under his charge and management. Mahant Sundar Das died in 1906 and Mahant Gopal Das died in 1907. Mahant Gopal Das had two chelas, Ram Das and Ram Pratap Das, and on his death was succeeded by his senior chela, Ram Das as mahant of both the asthals. Ram Das also died shortly after in the. year 1911. Ram Das had two chelas Mahabir Das and Bhagwat Das. At the time of the death of Ram Das, Mahabir Das was away to Brindaban, and Bhagwat Das took temporary possession of all the properties. On the return of Mahabir Das he took posses, sion of the properties and performed the bhandara of his Guru. It is said that Mahabir Das had to purchase peace with Ram Pratap Das, who had laid claim to the properties adverse to him, by making a money payment to him. The conduct of Mahabir Das in introducing later a young woman of the name of Alakhamba into the temple and making her a mahant of the dependant temple at English quarter and making a gift to her of 15 bighas of land was resented by the Baishnab Bairagis of the Ramanuji sect. Rampratap Das, the chela of Sundar Das, and some other mahants of that place instituted a suit on Slat May 1920 in the Court of the District Judge of Monghyr u/s 92, Civil P. C, for removing Mahabir Das and Mt. Alkhi and for the appointment of a new trustee who would be fit and worthy of holding the post of the mahant. That suit was disposed of by the learned District Judge on 8th June 1922 who held that the connexion of Mt. Alkhi with the asthal properties was most undesirable and that her very appearance was most suspicious as she was far too young and good looking to hold the post which she was said to have been occupying. He also found that Mahant Mahabir Das had been extravagantly wasting the properties of the asthal and was not in necessity of incurring a number of debts in suit by which he executed various deeds transferring about half of the properties of the asthal. Accordingly he ordered that:

Mahanth Mahabir Das is hereby removed from his post of Mahanth of the two Asthals in suit and is deprived of all control of the Asthal property. Mt. Alkhi is similarly removed from the post of shebait. Mahabir Das must submit an account within three months of this date of all the Asthal property that has passed through his hand. For the future management of the Maths a new mahanth shall have to be appointed in order that a suitable man be chosen. I direct that the plaintiffs shall nominate a committee of five respeotable Hindus of the looality (to be approved of by me) who shall select a new mahanth, subject also to my approval. The plaintiff should submit the names of the committee within one week. I shall also consider any objections that may be urged by the defendant Mahabir Das to the names proposed.

On the 24th October 1922 the pleader of Mahant Mahabir Das moved the District Judge for stay of proceedings upon the ground that he had lodged an appeal in the High Court, but the learned District Judge refused to grant stay and even refused time to the defendant to move the High Court for a stay order. The learned District Judge then eon-sidered whether there was any valid objection to Mahant Ram Pratap Das, who had been nominated by the plaintiffs, being appointed as mahant of the asthals, and the only objection put forth by Mahabir Das, namely that he does not like Ram Pratap Das, was overruled. The result was that "the learned District Judge appointed Mahant Ram Pratap Das as the mahant o''f the two asthals'' and put him in charge of the properties appertaining thereto upon his furnishing security to the extent of Rs. 1000. It was also directed that the Nazir of the Court should put the new mahant in possession of the immovable properties attached to the two maths, and the new mahant should start the work of cultivation at once. In accordance with that order, the Nazir went to village Barhi on 26th October 1922 and put the new mahant in possession of the maths and the immovable properties attached thereto on proclaiming it by beat of drums. The learned District Judge had directed that if any moveable property was found by the " Nazir it should be taken possession of by him and kept in custody of the Court till further orders. But as the only moveable property which was found was utensils and as Mahant Ram Pratap Das and the other Hindus who were present on the occasion stated that these articles were required for puja every day and that if they were removed the puja work will be stopped and the religious feelings of the Hindus would be wounded, the Nazir did not think it desirable to remove these articles and left them in charge of the new Mahant Ram Pratap Das. He also prepared a list of the properties and submitted a report to the Court on 28th October 1922. It is therefore clear that Mahant Mahabir Das was actually removed from the office and from the possession of the properties attached to the asthal on 26th October 1922.

Against the decision of the learned District Judge, the appeal which was filed in this Court, which was numbered as First Appeal No. 228 of 1922, was disposed of on 8th January 1926. The High Court held that there was no doubt that this was a case of public endowment and the properties did not belong exclusively to the -mahant. It was also held that the evidence that there was improper relationship between Mahabir Das and the lady was very meagre and could not be acted upon. It also found that when the mahant succeeded to the office-there were 125 bighas of land belonging to the asthal, that the mahant constructed a new temple which cost him about six or seven thousand rupees and that although it was true that he had sold 43 bighas of land but he''had also purchased 31 bighas of land in his time. But as the income, when he succeeded to the office, was Rs. 1000 and the present income was about Rs. 600 or Rs. 600 only there was-no doubt in the view of the High Court that the defendant had been extravagant. They thought, however, that no case had been made out for his removal, but as the rights of the Ramanuji sect had to be protected they ordered that three persons should be appointed by the District Judge so that they may examine the accounts at all reasonable time whenever they would call upon the mahant to produce'' the account for their inspection. The result was that the appeal was allowed and the decree of the learned District Judge was set. aside. On 30th June 1926, the Court granted a. review of this judgment upon the ground that a most material error had crept in into the paper-book which went into the root of the-judgment. The result was that the judgment of the High Court was set aside and the appeal was again restored for re-hearing. Upon rehearing, the High Court on 17th December 1926,. came to an opposite conclusion and dismissed the appeal. They held that the conduct of the defendant in introducing Mt. Alkhi could not be supported and had resulted in respectable people stopping their visits to the asthal and only low caste people addicted to ganja were going there now. It was also held that the defendant had been very extravagant in the management of the asthal properties and that the income of the property has been reduced from Rs. 1000 to Rs. 500 or Rs. 600 per annum. Mahant Ram Pratap Das who had been placed in possession in October 1922, thus continued in possession till the date of his death in Nov-ember 1938, and was succeeded by Mahant Ramsarup Das, his chela. On 15th December 1938, the suit giving rise to this appeal was instituted (along with a number of other suits which have given rise to other connected appeals, which would be disposed of separately}'' for a declaration that the sale deed dated 7th November 1917, by which Mahant Mahabir Das sold 37 bighas, 14 kathas and 14 dhurs of land belonging to the asthal for an alleged consideration of Rs. 5848 in favour of the defendant Ramrachhaya Prasad Singh, may be declared invalid and that the plaintiff may be given khas possession of the property by dispossessing the defendant together with mesne profits. It was alleged in paras. 4 and 5 of the plaint that the consideration for the sale deed was the discharge of debt due on six hand-notes executed by Mahant Mahabir Das with the recitals that money was taken for building a temple, for purchasing bullocks and seeds and for other expenses of the asthal and that the necessities for executing the hand-notes and the deed of sale were

altogether imaginary, showy and concocted. The said deed of sale has been brought into existence in collusion and conoert with the defendant without any necessity, and justification whatsoever. The said asthal has not derived any benefit from the said deed of sale.

It was also alleged that at the time when the debts so mentioned were incurred the asthal had sufficient properties for meeting the legitimate expenses of the asthal and there was no necessity whatsoever for transferring any property for meeting the expenses of the asthal.

The defendant resisted the suit upon the ground that the properties which had been transferred belonged to the mahant absolutely and were never dedicated or made over to the idols which were worshipped. It was also contended that Mahant Mahabir Das carried out the wishes of his preceptor, Mahant Ram Das, in constructing a thakurbari so that the expenses incurred in completing the construction were valid necessities and the transfer in favour of the defendant was binding. It was also pleaded that the suit was barred by limitation. The learned Subordinate Judge came to the conclusion that the evidence left no room for doubt that the asthal was the owner of the properties and it was always regarded as such so that the properties were not the personal properties of Mahant Mahabir Das. He also held that the execution of the sale deed in question was justified by necessity, namely, the housing of the images in a proper habitation as : "It did not look well for the images to continue in the poor shed when the asthal had come to own extensive properties." On the question of limitation the learned Subordinate Judge was of the opinion that the removal contemplated by Article 134B was the final order of removal passed by the High Court and that would be the date of removal for the purposes of limitation. Accordingly he held that the suit was not barred by limitation. In the result he dismissed the suit. Hence the appeal to this Court. Mr. P. R. Das challenges the correctness of the finding of the learned Subordinate Judge on the question of necessity and Mr. Baldeo Sahay, who appears for the respondent, challenges the correctness of the view of tha learned Subordinate Judge on the question of limitation,1 and also argues that the learned Subordinate Judge should have found that tne properties do not belong to the asthal or the deities but belonged to the mahant himself.

In my opinion the suit of the plaintiff was clearly barred by limitation. Article 134B provides the starting point of limitation for such a suit as "the death, resignation or removal of the transferor." When was Mahant Mahabir Das removed in the present case ? While narrating the history of the proceedings u/s 92, Civil P. C, I have shown that Mahant MaHabir Das was removed from the office and from the possession of the properties in October 1922, and notwithstanding the fact that the decision of the District Judge was first set aside by the High Court on 8th January 1926 Mahant Ram Pratap Das continued in possession as the mahant. Mahant Mahabir Das thereafter never took possession or exercised any of bis functions as a mahant even between 8th January 1926, and 80th June 1926 when the High Court granted the review. It is difficult to understand that the removal of Mahant Mahabir Das which had taken place in October 1922, was nullified in fact merely by reason of the High Court allowing the appeal on 8th January 1926.

Mr. P. R. Das contended that as soon as the appeal was filed to the High Court, the matter of the removal of the mahant from his office became res sub judice and, therefore, there could not be a removal in law until the High Court finally decided the matter in controversy, and that as the final decision of the High Court was in progress till 17th December 1926 that is the date upon which Mahant Mahabir Das was removed within the meaning of the law so that the present suit instituted on 15th December 1938 for setting aside the alienation by Mahabir Das was within time. Mr. P. R. Das relies strongly upon the case in Ram Churn Bysack v. Lukhee Kant Bornick (71) 16 W. R. 1 where the learned Judges observed that when the judgment of the trial Court is affirmed or varied by the judgment of the appellate Court, it is the judgment of the appellate Court which is the judgment in the case and that judgment of the trial Court is "dead and gone" equally when it is set aside or when it is affirmed. He, therefore, argues that when the judgment of the High Court affirmed the judgment of the learned District Judge on 17th December 1926, the judgment of the District Judge dated 8th June 1922 was dead and gone. This case in Ram Churn Bysack v. Lukhee Kant Bornick (71) 16 W. R. 1 (F.B.) was approved by the Judicial Committee in Kristo Kinkur v. Rajah Burrodacaunt (72) 14 M. I. A. 465 to the extent indicated at p. 492 where Sir James Celvile in delivering the judgment of the Board observed:

If the question were res integra, their Lordships would incline to the view taken by the Judges of the High Court in the present case, viz., that the execution ought to proceed on a decree, of which the mandatory part expressly declares the right sought to be enforced. Considering, however, that, for the reasons already given, the question is not of much practical importance, their Lordships will not express dissent from the rulings of the Madras Court, and of the Full Bench of the Bengal Court, further than by saying, that there may be cases in which the appellate Court, particularly on special appeal, might see good reasons to limit its decision to a simple dismissal of the appeal, and to abstain from confirming a decree erroneous or questionable yet, not open to examination by reason of the special limited nature. of the appeal.

It is to be observed that the case in Ram Churn Bysack v. Lukhee Kant Borniok (71) 16 W. R. 1 was decided under the old CPC and related to a question of execution. We are governed by the present Code of Civil Procedure, and it is distinctly provided in o. 41, Rule 5 (1) that an appeal shall not operate as a stay of proceeding in a decree or order appealed from except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the appellate Court may for sufficient cause order stay of execution of such a decree. It is clear, therefore, that the operation of the original decree passed by the District Judge was not suspended in this case by the mere presentation of an appeal to this Court, nor was its operation interrupted, as the appeal was finally dismissed, except for a few months perhaps before the review was allowed. See in this connexion the case in Juscurn Boid v. Pirthichand Lal A. I. R. 1918 P. C. 151 relied upon by Mr. Baldeo Sahay. In that case the sale of a patni taluk for arrears of rent was set aside on 24th August 1905 and the judgment was affirmed in appeal on 3rd August 1906. The purchaser who was a party to these proceedings sued the zamin-dar on 14th September 1908, to recover so much of the purchase money as had been paid over to him. The purchaser had continued in possession till 28th August 1906.'' It will be noticed that the suit was instituted within three years of the date of the appellate order but beyond three years of the date of the first Court''s decision. Their Lordships held that time began to run from 24 th August 1905. Sir Lawrence Jenkins, who delivered the judgment of the board, thus disposed of the principal question which depended upon the application of Article 97, Limitation Act:

The period of limitation prescribed by Article 97 is three years, and the time from which the period begins to run is the date of the failure of consideration. The suit was instituted on 14th September 1908, and it is alleged in the plaint that the cause of action arose ''on 3rd August 1906, the date of the appellate decree in connexion with Suit No. 248 of 1904, and subsequently 28th August, the date of decree in the three suits, Nos. 262, 273 and 277 of 1904''. These are the decrees already mentioned, and the case here made is that it was the reversal of the sale that was the cause of action. But by the decision in the first suit, No. 248 of 1904, the sale was reversed in its entirety and for all purposes irrespective of the decrees in the three later suits, so that if the reversal of the sale is the cause of action the only question is whether time began to run as the plaint alleges from 3rd August 1906, the date of the appellate decree, or, as the defendant-respondent contends, from 24th August 1905, the date of the original decree in Suit No. 248 of 1904. Both Courts have held that the failure of consideration was at the date of the first Court''s decree. Their Lordships feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.

In my opinion, this case completely answers the contention raised by Mr. P.R. Das, and I must hold that the removal of the mahant, not only decreed by the District Judge but actually carried out by removing Mahant Mahabir Das and putting Ram Pratap Das in possession, was not interrupted and could not be interrupted merely by reason of the fact that an appeal was pending in the High Court which ultimately was dismissed. Mr. Das in distinguishing this case relies on some other cases which must now be dealt with.

In Sabir Husain Khan Vs. Jan Mohammad, , a case which was decided under the revisional jurisdiction by the Acting Chief Justice sitting singly, the question which arose for decision was the starting point of limitation in a suit for refund of the price on the ground of failure of consideration. The plaintiff in that case had purchased a decree from the defendant which was subsequently declared as void on the ground of fraud. The decision was reversed in appeal but was restored by the High Court in second appeal. The suit for refund was instituted within three years of the decision of the High Court but beyond six years of the decision of the trial Court. In these circumstances the learned Chief Justice held that it was impossible for the plaintiff to have brought a suit for the refund of the sale consideration when the suit for setting aside of the decree which he had purchased had been dismissed by the District Judge, and time began to run from the date of the High Court''s decree which restored the first Court''s decree, and then referring to the case in Juscurn Boid v. Pirthichand Lal A. I. R. 1918 P. C. 151 it was stated that the decision was pbviously distinguishable because after quoting the observation at p. 56, which I have already stated in the earlier part of the judgment "the decree of the District Judge was one of reversal and not dismissal." In the present case the ultimate decree of the High Court was a decree of affirmance. Baijnath Karnani v. Vallabhadas Damani A. I. R. 1933 Mad. 511. In that case the plaintiff was seeking to enforce a foreign judgment given in Bikaner. The decree of the first Court in Bikaner was appealed from but the appeal was dismissed by the appellate Court. The plaintiff''s suit was within three years of the date of the decree of the appellate Court but it was beyond three years of the date of the decree of the first Court. The learned Chief Justfce observed at page 953:

What has got to be found is, what is the final decree which has beeh obtained by the plaintiff in the suit; and it is quite clear that in order to enforce the judgment of a foreign Court that judgment must be a final one; and indeed that is conceded by the learned Counsel for the appellant and the respondent.

As the matter was conceded by the parties, this decision is obviously of no weight to decide the present question. Mr. Das also relied upon a number of cases which decided the question which was debatable at one time as to whether the period of limitation for an application to make a preliminary mortgage decree final should run from the date of the first Court''s decree or from the date when that decree was affirmed in appeal. This question is now decided by their Lordships of the Judicial Committee in Jawad Hussain v. Gendan Singh A. I. R. 1926 P. C. 93, where Viscount Dunedin in delivering the judgment of the Board observed at page 200:

Which date is then to be preferred? Their Lordships agree entirely with what was said by Banerji J. in Gajadhar Singh Vs. Kishan Jiwan Lal and Others, . It seems to me that this rule, i.e., the rule regulating application for final decrees in mortgage actions, ''contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition of the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate Court which is the final decree in the cause.

Then their Lordships referred with approval to the observations by Tudball J. in Madho Ram and Others Vs. Nihal Singh and Others, , and to the case in Abdul Majid v. Jawahir Lal A. I. R. 1914 P. C. 66. To the same effect is the decision in Venkatarama Reddi v. Dodda-chariar A. I. R. 1930 Mad. 353 , a decision of a Single Judge, which was relied upon by Mr. Das. In my opinion these cases do not give any assistance to the argument of Mr. Das because they decided the question as to when the right to apply to make a preliminary decree final accrues to the mortgagee decree-holder. It is to be noticed that where a preliminary mortgage decree is passed such a decree is not capable of execution. These cases, therefore, in my opinion, are quite distinguishable. Reliance was also placed by Mr. Das on the case in AIR 1932 165 (Privy Council) . He relied oil the observation of Sir Dinshah Mulla, who delivered the judgment of the board, at p. 288:

It is at least intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

But here the plaintiffs in the suit did pursue the thorny path of execution and were able to realise the fruits of their decree. Furthermore, the question for consideration there arose upon the construction of Article 182, Limitation Act, in determining the period for execution of a decree where there "has been an appeal." This case is of no assistance to Mr. Das. Mr. Das then relied upon the case in Mahant Ramdhan Puri Vs. Mt. Parbati Kuar and Others, . The headnote at p. 477

A suit by the succeeding mahant to set aside such a compromise embodied in a decree of the Court, and for recovery of the math property brought within twelve years of his succession to the math, is not, therefore, barred.

was relied on, but this headnote is incorrect and no passage in the judgment of Madan J. bears it out. It is enough to state that the suit in that case was instituted within twelve years of the date of the alienation. Mr. Das also relied upon the case in AIR 1933 75 (Privy Council) , but in my opinion that case does not help him either. At p. 131 occurs the following important passage in the judgment of Lord Bussell of Killowen:

This is a clear statement that a mahant is at liberty to dispose of the property of a math during the period of his life and that a grant purporting to be for a longer period is good to the extent of the mahant''s life interest. Here again their Lordships think that the reference to life is upon the footing that the mahant continues during his life to hold that office. It will be observed that the statement is in no way confined to the grant of a lease, but covers the case of a purported out and out grant of the property. Whatever the intended duration of the attempted grant may be, it is good, but good only for the limited period indicated. In view of these statements by the Board their Lordships hold that in the present case the lease and the deed of sale of 13th February 1911, were good ",nd effective so long as Rampat Das continued to be mahant, and that therefore adverse possession only commenced when he died.

Applying this statement of the law to the facts of the present case, the deed of sale of 7th November 1917 was good and effective so long as Mahant Mahabir Das continued to be the mahant and therefore adverse possession commenced when he was removed from the office. Mr. Das attempted to draw an analogy from the well-known case in Vidya Varuthi Thirtha v. Balusami Ayyar A. I. R. 1922 P. C. 123 where it was held that a lessee from a mahant has not adverse possession under Article 144 of the schedule to the Limitation Act until the death of the head who granted the lease, and that if the lessee''s possession is consented to by the succeeding head, that consent can be referable only to a new tenancy created by him, and there is no adverse possession, until his death. It was argued by Mr. Das that the possession of the vendee in the present case could not be ad-verse till the death (or removal) of Mahabir Das who had executed the kebala and that as the succeeding mahant did not take any steps to have the sale deed set aside it must be assumed in law that he consented to the possession of the vendee till he died. and, therefore, possession became adverse to the plaintiff from the time when he succeeded to the gaddi. This contention, in my opinion, is unsound. The possession of the vendee in the present case became adverse from the date when Mahant Mahabir Das was removed from his office. The fact that Ram Pratap Das did not take any steps to recover possession from the vendee will not interrupt the adverse possession which had begun from 8th June 1922-the case of a lease is different.

For these reasons I am of opinion that the suit of the plaintiff was barred by limitation and the learned Subordinate Judge was in error in taking a contrary view. In dealing with this question, I have assumed that the transfer in favour of the defendant was invalid. As the question has been argued at length I proceed to consider the question as to whether the sale of the properties in dispute was justified by legal necessity. Learned Counsel for the appellant was not able to contend that the consideration for the sale deed was fictitious. He placed before us all the handnotes beginning from October 1915 up to December 1916 and the last handnote of February 1917, which have been recited in the sale deed. The learned Subordinate Judge has held that the sale deed was for consideration, and having perused the evidence I agree with that finding. The most serious question which was argued on behalf of the appellant was that there was no necessity whatsoever in law to justify this alienation. It was argued that no mahant has power to spend so much money in order to construct a temple in which the idols should be housed if the expense could not be met from the income of the asthal properties and that in the prgseni case the idols may well have been allowed to continue to live in their old abode which was given to them by the founder in 1906 or 1907, and that there was no justification in law to sell 37 bighas odd of land along with other alienations (which are the subject of other appeals) with the result that the income of the asthal properties has now been reduced by one half.

It should be observed at once that the case which was sought to be made out by the plaintiff in the Court below was (1) that the temple was built by Gopal Das and not by Mahant Mahabir Das, and (2) that the money which was taken on the handnotes, subsequently converted into the sale deed in question, was not spent for constructing, the temple but was used for immoral purposes of the mahant. This attack on the sale deed and on the hand-notes has been given up by learned Counsel for the appellant, but, in my opinion, the attack which was made in the trial Court upon these transactions has an important bearing upon the question for decision because it is obvious that the construction of this temple was considered necessary for the idols. The evidence of the plaintiff''s witnesses discloses that Mahant Sundar Das had acquired 27 bighas of land for this asthal and Mahant Gopal Das acquired 56 or 57 bighas see for instance the evidence of P.W. 1 at p. 7). The evidence on both sides appears to be agreed on this. It is alsovdear from the evidence that Mahant Gopal Das or Mahant Ram Das invested the surplus income by granting loans to other persons which were realized by Mahant Mahabir Das. In October 1917 Mahant Mahabir Das took a kebala of 25 bighas and 10 kathas of land from Gujan Singh. The consideration was the adjustment of the old dues of Rs. 1,373-4-0 advanced by the previous Mahant Ram Das and a further sum of Rs. 539-12-0 to be paid by Mahant Mahabir Das himself (see exhibit y oat p. 11 Part III). On 20th October 1911 Mahant Mahabir Das purchased 12 bighas and 10 kathas of land for a sum of Rs. 1,498. Out of the consideration Rs. 1,075 was set off towards the previous dues by the vendor to Mahant Ram Das on a handnote, Rs. 383-80 was left in deposit with Mahant Mahabir Das to be paid to the creditor of the vendor and Rs. 39-8-0 was paid in cash (see exhibit D (5) at p. 2, Part III of the paper-book in First Appeal No. 142 of 1941). It is, therefore, established that Mahant Mahabir Das increased the assets of the asthal properties by about 38 bighas. This shows that Mahant Mahabir Das was careful in looking after the interest of the asthal. He could easily have spent the money due from these borrowers on purposes not strictly beneficial to the estate. Now, if in these circumstances he constructed a temple by transferring the very lands, which came to the deities from the income of the asthal properties which had been invested by the previous mahants it is impossible to say that this transaction was not justified. The learned Subordinate Judge has pointed out that the asthal which had a very humble beginning in 1906 or 1907 was by the time Mahant Mahabir Das came to occupy the gaddi known as a respectable institution and had about 80 to 90 bighas of land appertaining to it, that every, body approved when a large sum of Rs. 2,000 was spent on the sradh of Mahantf Ram Das and, therefore, it was only in the fitness of things that Mahabir Das began the construction of a good temple and ''jhula ghar'' for the images. I agree with this view.

But it is argued by Mr. Das as a strict proposition of law that the mahant of an endowment cannot transfer debuttar property for purposes which are only profitable or beneficial to the estate in the absence of circumstances necessitating the transfer for the sole purpose of protection or preservation of the estate from sequestration or extinction. He relied upon a number of eases in support of the proposition of which Monohar Das Mohanta Vs. Tarini Charan Nandi, is the type and in which all the previous cases relied upon before us by Mr. Das have been considered by the Calcutta High Court. The proposition of law so stated in the abstract cannot be questioned, but the law has to be applied to the varying circumstances of each case.

In the present case upon the view which I have taken the mahant has not transferred any properties of the asthal but he has in fact utilised the surplus income of the asthal which had been lent out to borrowers who paid him back by transferring to the estate as much as 25 bighas in October 1917 and about 12 bighas six years before. It will be remembered that the deed of sale in question in this appeal was executed in November 1917. It cannot be denied that the construction of a temple is a meritorious act and was highly approved of by the people of the locality and has resulted in better housing of the idols. There is evidence that the previous kuchha house'' in which the idols had been housed was damaged and used to be damaged at. the time of the floods. If in these circumstances Mahant Mahabir Das decided to construct a pucca temple and to provide a cement singhasan for the deities by utilising the income of the asthal-though he received it in the form of land from the debtors-he was quite justified. Mr. Baldeo Sahay sought to argue that it should be held that the properties transferred were not the properties of the asthal but were the private properties of the mahant. But having perused the evidence I am unable to agree with this contention and agree with the finding of the learned Subordinate Judge. The evidence of both sides is unanimous that all the acquisitions were treated by the various mahants as the properties of the asthal even though it is true that no formal deed of dedication or acquisition in favour of the deities has been produced. But it must be remembered that the founder was a religious mendicant of the Bamanuji Baishnab sect. He was a devout sadhu and it is not to be expected that he would be acquiring any property for himself. Moreover, the recitals in the various handnotes and the documents executed in favour of the various mahants or by Mahant Mahabir Das all describe that the mahant was a gadinashin of the asthal. Mr. . Baldeo Sahay relied upon the deed of endowment by Mahant Mahabir Das in favour of Thakur Sri Ram Janki of 14th January 1919 (Ex. D-l) by which he dedicated 6 bighas 19 kathas 17 dhurs and 2 annas and 14 dams of village Barhi to the deities. He also dedicated on 1st September 1919, fifteen bighas of land to the idols of the dependant math. These transactions, however, do not appear to be above board. The latter transaction obviously was entered into in order to provide for Mt. Alkhi, and as to the former transaction there appears to be no need for dedicating a small property in that year to the deities. There is considerable force in the argument of Mr. Das that that these transactions were entered into in order to protect the transferee, who is the defendant in the present action.

Mr. Baldeo Sahay also relied upon the entries in the survey record of rights where the deities are recorded as the owner only of the land upon which the temple stands, and regarding the other properties the name of the mahant is entered. But this is the usual way in which such entries are made and no presumption can be drawn from the mere fact that the name of the mahant has been entered as being in possession and not the deities. Moreover in several entries in Register D, I find that the name Of the mahant is entered along with the deities, for instance, Ex. 7, p. 49 regarding village Barhi, Ex. 7 (b), p. SO regarding estate Sital Singh, Ex. 7 (c) regarding another tauzi of village Barhi. For these reasons I am of opinion that it has been established that the properties belong to the deities or the asthal and were not the personal properties of any of the mahants far less of Mahant Mahabir Das. The result is that I would dismiss this appeal with costs.

Beevor, J.

I agree. Even if the High Court''s judgment of 8th January 1926 is treated as restoring Mahabir Das, who had been removed in October 1922, the order of 80th June 1926 granting a review had, in my opinion, the effect of reversing the restoration of Mahabir and restoring his removal. Even if limitation is taken as running from 30th June 1926 the present suit is barred by limitation.