Ram Narayan Das vs Mahant Gopal Das

Dawson Miller, C.J.—This is an appeal on behalf of the plaintiff against a decision of the District Judge of Darbhanga reversing a decision of the Additional Subordinate Judge.

The plaintiff, who is the Mahant of the Gothauli Math, instituted the present suit against the defendant, who is the Mahant of the Dharam-pur Asthal, claiming to enforce a mortgage-bond executed in favour of the plaintiff by the defendant''s predecessor Ajodhya Das to secure a loan of Rs. 1,500 together with interest advanced by the plaintiff to Ajodhya Das, the previous Mahant of the Dharampur Asthal.

Various defences were set up by the defendant, the main defence being that there was no necessity to borrow the money for the purpose for which it was borrowed. The defendants case was that there was all along a sufficient fund in the hands of his predecessor to perform the Sradh of Basdeo Das, the predecessor of Ajodhya Das, for which purpose the money was borrowed.

The learned Subordinate Judge before whom the case came for trial having arrived at the conclusion that the performance of the Sradh ceremony was a necessity for which it was permissible for the Mahant of a Math to utilise the endowed funds, also considered that he might, for the same purpose, alienate or mortgage the Immovable property in order to put himself in funds for that purpose. It appears that the plaintiff, shortly after the death of Basdeo, who died in the year 1316 Fasli, advanced to his successor Ajodhya Das a sum of Rs. 1,500: He was informed that the money was needed by Ajodhya for the purpose of performing the Sradh of his predecessor Basdeo. There is no evidence to show that any enquiries were made as to the financial position of Ajodhya from the income at his disposal at that time. Ajodhya died within about a couple of months of Basdeo after the Sradh of the latter had been performed and he was succeeded by the defendant Gopal Das as the Mahant of the Math.

When the case came on appeal, as it did, to the District Judge it was contended on behalf of the defendant that, although it might be permissible in certain cases where there was actual necessity for a Mahant of a Math to borrow money in order to perform the Sradh of his predecessor, still it must be shown in such a case, if it were claimed to charge the endowed properties with the re-payment of the loan that there was not merely an occasion which could be regarded as creating a necessity for borrowing money but also that there was in fact no sufficient money at hand to perform the ceremony for which the money was borrowed. The learned District Judge considered the case from this point of view. It was shown by the evidence as he found that a sum of Rs. 4,000 or thereabouts was spent by Ajodhya in performing the Siadh ceremony. The money borrowed from the plaintiff was Rs. 1,500 and it appeared that a further sum amounting to Rs. 700 was borrowed at the same time from other sources so that altogether a sum of Rs. 2,200 was borrowed for the purpose of performing the Sradh ceremony. But as Rs. 4,000 altogether were spent, this showed that Ajodhya at that time had in hand a fund of about Rs. 1,800 over and above the sum which he in fact borrowed. The learned Judge came to the conclusion that Rs. 4,000 was over lavish an expenditure in the circumstances in connection with the Sradh ceremony. He considered that Ajodhya had no right to raise money by mortgaging the endowed property in order to spend it lavishly on the Sradh and thereby endanger the future management of the math and he was of opinion that the mortgage was not within the competence of Ajodhya and as such was not binding upon the endowed property. The learned Subordinate Judge had not considered this aspect of the case but it was undoubtedly open to the District Judge to regard it from that point of view. He said that the Sradh might be performed either on a small or on a lavish scale and it is expected that every one must cut his coat according to the cloth and he accordingly held that the mortgage was not binding upon the defendant and as such could not be enforced. From that decision the plaintiff has appealed and he has contended before us that he was not bound in such a case to ascertain whether or not there was a real necessity for borrowing the money. If in fact the money was lent for what may be regarded as a necessary purpose, that was all that he was concerned with, and that he was entitled not only to lend money on such an occasion but was also entitled to obtain the security of the endowed property to secure him for the repayment of the money lent. In my opinion the learned District Judge''s view of the matter was the right view. The manager of an endowed property such as this no doubt has authority to alienate or to mortgage the endowed property if an occasion should arise when it becomes necessary in the interests of the endowment to do so. If it is necessary to perform Sradh of a deceased Mahant and there is absolutely no money for that purpose, I think that the manager for the time being has authority to charge or sell a sufficient portion of the endowed property for that purpose. If, however, he has, as part of the income of the endowment, a fund sufficient to carry out the Sradh then, clearly, he has no authority to mortgage the capital of which he is the trustee. Whether he has a sufficient fund or not is purely a question of fact. The learned District Judge in this case arrived at the conclusion that a sum of Rs. 1,500 would be sufficient for that purpose. It was shown from the evidence that there was a sum of Rs. 1,500 and more at the disposal of Ajodhya at the time when the money was borrowed and, in these circumstances, he considered that Ajodhya had no authority to mortgage the endowed property. I also agree with the learned District Judge in arriving at the conclusion that it lay upon the plaintiff, before advancing the money, to satisfy himself that there was no fund available for the purpose of performing the Sradh. It does not appear that any enquiries were made and, therefore, it cannot be said that the plaintiff in this matter acted in a bona fide manner which would entitle him, even if there was the actual necessity, nevertheless to obtain the security of the Immovable property.

The only other question which was raised in this appeal was whether the property was the property of the Math or whether it was the personal property of the Mahant which descended from Basdeo to Ajodhya and then from Ajodhya to the defendant Gopal. The learned District Judge in the course of his judgment says:

It is the case of both parties that the mortgaged property is the property of the Math arid not the personal property either of the defendant or of Ajodhya.

If that is accurately describing the state of affairs, there is an end of the matter. The learned Vakil for the appellant contends, however, that the learned Judge was not accurate in saying that it was the case of both parties that the mortgaged property was math property. It is, therefore, necessary to look back and see how the claim was laid. The plaintiff sued the defendant as the legal heir of Mahant Ajodhya. So far as the plaint is concerned, the matter is, therefore, left open. In the defence the property is treated throughout as being the property of the math and part of the endowment and in fact it is contended that this property was not liable to be charged at the time when the money was advanced. In the issues framed there is no issue at all as to whether the property was that of the math or the personal property of the Mahant, although a question was raised as to whether the money lent was the personal property of the lender or part of the trust property of the Gothauli Asthal of which he was the manager, but the third issue in the suit seems to me to put the matter beyond any doubt because, bearing to mind that there was no issue as to whether this was the personal property of the defendant or the property of the endowment which he represented, the third and last issue is whether Ajodhya Das had any right to mortgage the property of the Dharampur Asthal. It was, therefore, apparently agreed on all sides that the property in suit was in fact the property of the Dharampur Asthal. On turning to the decision of the learned Subordinate Judge again there is no discussion anywhere as to whether the property was that of the defendant or part of the endowment, and the only passage in his judgment which would afford any sort of support to the appellant''s contention is a passage in which the Subordinate Judge points out that certain documents, namely the survey khewat and Register D, show that the mortgaged property was recorded in the name of Basdeo in the one case and in the name of the defendant in the other, and not in the name of the idol. It is merely a remark apparently made in passing and nothing turns upon it, and then, when we come to the judgment of the District Judge, it is distinctly stated that it is the case of both parties that the mortgaged property is the property of the math and not the personal property either of the defendant or of Ajodhya. Further, Mr. Sarcar who appeared in the Lower Court as a Vakil on behalf of the defendant informs us that the learned District Judge was right and that the case was conducted upon those lines. In these circumstances, it seems to me that it is not open to the appellant now to ask us to send this case back for a finding upon a point on which there was no dispute. In my opinion this appeal fails and must be dismissed with costs.

Kulwant Sahay, J.

I agree.