Rao Saheb Manda Appa Rao Pantulu Garu-Interim Trustee of Haradakhandi Mutt and Another vs Budankayala Vignesam Subudhi and Others

Horwill, J.—The plaintiffs lent a sum of money on a promissory note to the late mahant of the Lakshminarasimha Swami Mutt at

Haradakhandi and have brought this suit against the present holders of the mutt for the recovery of the amount due. Both the lower Courts have

found that the debt was not for the necessity of the mutt and was therefore not binding on the present mahant. In giving a decree against the

personal property if any of the late mahant, both Courts have held that the arrears of rent due during the lifetime of the late mahant and since

collected are the personal property of the late mahant and therefore liable in satisfaction of the decree. An appeal has been filed against this

incidental finding, while a memorandum of cross-objections has been filed with regard to the main finding that the debt is not binding on the mutt.

Both Courts held that arrears of rent due before the late, mahant''s death but not collected by him were his personal property, because of a

dictum of Ramesam, J., reported in Lakshmindra Thirthaswamiar v. Vibhudapriya Thirthaswamiar (1922) 44 M.L.J. 187. That too was a suit

against a mutt and it was held that the debt was not binding on the mutt. No issue was raised on the question whether rents uncollected would be

liable for the debt and no discussion before the learned Judges seems to have taken place. Krishnan, J., makes no reference to the matter.

Ramesam, J., at the very end of his judgment, says:

In the result the appeal is allowed so far as the mutt properties are concerned but the plaintiff will be entitled to a decree for the suit sum against the

assets of the late Swamiar in the hands of the defendant - such as y, uncollected arrears since collected or investments of the late Swami which

have not been incorporated with the mutt properties.

It is contended in appeal that this dictum is not in accordance with the law on the point. Whether or no arrears not collected were the property

of the late mahant depends upon the larger question as to the powers of the mahant to dispose of mutt property. This question has been considered

in a very large number of cases and many of the older decisions are no longer good law. The first case that may be considered as bearing on this

question is Ram Parkash Das v. Anand Das (1216) 31 M.L.J. 1 : L.R. 43 IndAp 73 : ILR 43 Cal. 707 which case came up for consideration in

Kesho Das v. Amar Dasji ILR (1934) 14 Pat. 379. The latter was a case in which the applicability of Section 92, Civil Procedure Code, to the

management of a mutt was considered and it was held that this section did apply and that although the mahant was not a trustee in the legal sense

of the word, yet he was a trustee in a general sense for the proper administration of the mutt and its property. At page 385 is an extract taken from

the earlier case Ram Parkash Das v. Anand Das (1216) 31 M.L.J. 1 : L.R. 43 IndAp 73 : ILR 43 Cal. 707

This practice (of succession by Chela to Mahant) is ascetic; it involves a separation from all worldly wealth and ties, and a self-dedication to the

services and rites of the asthal...this property is held by the mahant as its owner, and the succession to him in such property follows with the

succession to the office. The nature of the ownership is, as has been said, an ownership in trust for the mutt or institution itself, and it must not be

forgotten that although large administrative powers are undoubtedly vested in the reigning mahant, this trust does exist, and that it must be

respected.

This reference to the ownership of the property by the mahant had given rise to some miss-understanding and their Lordships had to point out

that the mahant had no proprietary-Ownership of the mutt property nor did the property vest in him in trust (in the English sense) for the mutt. In

Vidya Varuthi v. Balusami Aiyar (1921) 41 M.L.J. 346 : L.R. 48 IndAp 302 : ILR 44 Mad. 831 the law on the subject was very fully and

elaborately discussed, the Board there confining itself to the question whether a mahant was a trustee in the English sense. Their Lordships

concluded from the cases cited before them that the mahant had very large powers of disposal over his property and was not restricted in his

dealing with the property as he would be if he were a trustee in the legal sense 01 the word. The cases were summed up at page 847 in these

words.

From the above review of the general law relating to Hindu and Mahomedan pious institutions, it would prima facie follow that an alienation by a

manager or superior, by whatever name called, cannot be treated as the act of a ''trustee'' to whom property has been ''conveyed in trust'' and who

by virtue thereof has the capacity vested in him which is possessed by a ''trustee'' in the English law.

Nowhere in this very long judgment did their Lordships give countenance to any suggestion that the head of a mutt had any proprietary interest

in the mutt property or its income, nor does such a contention seem to have been put forward before their Lordships. Mr. Lakshmanna, for the

respondents, has drawn my attention to the passage set out at the bottom of page 850:

Ordinarily speaking, the Sajjadanashin has a larger right in the surplus income than a mutawali, for so long as he does not spend it in wicked living

or in objects wholly alien to his office, he, like the mahant of a Hindu Mutt, has full power of disposition over it.

This sentence does not help the plaintiff, for it shows that although alienations by a mahant cannot ordinarily be questioned, yet he cannot spend

money entirely as he pleases on objects of vice or on objects wholly alien to his office. Nelliappa Achari v. Punnaivanam Achari (1926) 52 M.L.J.

415 : ILR 50 Mad. 567 is another case u/s 92, Civil Procedure Code, and contains the same finding that the mahant holds his property under a

kind of constructive trust. The only case to which my attention has been drawn and which contains anything which might suggest that the mahant

has a personal interest in the property is Srinivasa Chariar v. Evalappa Mudaliar (1922) 43 M.L.J. 536 : 49 I.A. 237 : ILR 45 Mad. 565 . This

was a case of a dharmakartha and their Lordships were careful to distinguish his position from that of the head of a religious institution. They say:

The position of dharmakartha is not that of a shebait of a religious institution, or of the head of a mutt. These functionaries have a much higher right

with larger power of disposal and administration, and they have a personal interest of a beneficial character.

Their Lordships were not concerned at all in that case with the powers of a mahant; but the passage does not necessarily mean more than that

he may use mutt property to a reasonable extent for purposes that are not strictly speaking for the benefit of the mutt. There is no reason to think

that any principle was here laid down that would conflict with the very many cases in which the fiduciary nature of the office of the head of a mutt

has been emphasised. Niladri Sahu v. Mahant Chaturbhuj Das (1926) 51 M.L.J. 822 : L.R. 53 IndAp 253 : ILR 6 Pat. 139 has been quoted to

show the large powers of the mahant to alienate property, even for purposes that may be considered to be extravagant; but in that case it was

found that the immediate cause of the borrowing was the mutt''s need for money to carry out and pay for its services; and it was therefore held that

it was only right that as the money was needed by the mutt, the money should be repaid out of the mutt properties. A receiver was therefore

appointed to manage the properties and make the mahant an allowance. The mutt properties were certainly not attached on the ground that the

mahant had a free power to dispose of the income of the mutt as he chose. A number of cases have also been quoted to me in which the well-

accepted principle was reiterated that for the purpose of limitation time does not begin to run against the mutt for alienations made by a mahant until

his death; the reason being that a mahant has power to alienate, even though the alienation may not be strictly necessary. In Mahanth Ram Charan

Das v. Naurangi Lal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : ILR 12 Pat. 251 it was held that if the whole property was alienated, such an

act would be void ab initio; but that the alienation of one item would be valid for the mahant''s lifetime. Although therefore the head of a mutt has

power to alienate some part of the mutt property without question, it is always subject to the restriction that he must not mismanage the property or

allow the institution to suffer from any of the alienations made by him.

I have been at some pains to discover whether in any of the cases quoted before me any distinction could be drawn between the powers of a

mahant over the income from the mutt property and the corpus. In some of the old cases it was suggested that the mahant had complete power

over the surplus income of the property after meeting the running expenses of the institution; but I find no warrant for such a distinction in any of the

cases that have been quoted and which may be considered to be still good law. It would seem reasonable to suppose that income which arises out

of mutt properties belong to the mutt; and so it has been held in Arunachalam Chetty v. Venkatachalapathi Guruswamigal (1919) 37 M.L.J. 460 :

I.R. 46 I.A. 204 : ILR 43 Mad. 253 . In that case there was a dispute between the gurukkal, who was the head of a mutt, and some chetties who

had been in possession of certain items of the mutt property for 90 years or more. They did not claim any beneficial right in the mutt property; but

the gurukkal who was suing them for the return of the property claimed it as his own. A question arose as to a sum of Rs. 20,000 which was

accumulated income. The Subordinate Judge declared that the gurukkal was entitled to the entire beneficial enjoyment of the income of the suit

villages during his life and continuance as the spiritual head of the institution, subject only to the maintenance of the institution. Their Lordships of

the Privy Council say at page 271:

It is plain to their Lordships that this (reasoning) would be not only a. subversion of the usage and custom of the mutt, but would be a violation of

the law applicable to such institutions. A fair test to be applied in such cases is to demand what is the true principle or nature of the administration

of surplus income. It is, of course, the duty of a trustee to refrain from the personal enjoyment of such surplus and to add the same to the capital of

the estate to be administered; and this law also applies to the property of a mutt or asthal, and that whether the title to the same is in the gurukkal

as spiritual head of the institution - which is an ordinary case - or is in trustees like the chetties according to the usage and custom of the institution,

as in the present case.

Basudeo Roy v. Mohant Jugal Kishwar Das (1918) 35 M.L.J. 5 dealt with acquisitions made with the income of an asthal and it was held that

they were subject to the same trust as the original property. Although that case might be distinguished, yet it cannot be doubted that their Lordships

were considering who had the title to the income from mutt property; for the argument was raised before them that such income was the personal

property of the mahant. That argument was repelled. It would therefore appear from the various cases quoted that no distinction can be drawn

between liquid assets or the income of the property and the corpus itself. All money arising out of the mutt property becomes itself mutt property

the moment it is received on behalf of the mutt; and no special act of appropriation is necessary to convert it into mutt property. On the contrary,

such receipts remain mutt property unless and until the mahant choses to spend them in pursuance of the large powers given to him. Admittedly

upon a mahant''s death the property vests in the successor and such liquid assets as are available and have not been otherwise disposed of by the

late mahant pass immediately to his successor.

The title of a mahant to the money collected after he became mahant but which was due before the death of the late mahant would be much

stronger; for the property had never passed into the hands of the late mahant and could not, by any reasonable theory put forward before me, be

considered as the property of one who was dead before the property came into existence. The lower Courts were therefore wrong in holding that

the rents not collected by the late mahant were his personal property, liable for the debts incurred by him.

It is argued that no appeal lies with respect to this finding because no mention of the rents is made in the decree. I have however little doubt

that if the plaintiff sought to execute the decree and the mutt raised the objection that the rents were not the property of the late mahant, the

executing Court would hold that the point had already been decided against them. The judgment can always be referred to in interpreting the

decree, and I think that this appeal was very properly preferred. The appeal is therefore allowed with costs in all Courts.

It seems not to have been contended in the lower appellate Court that the money received by the late mahant was used for purposes binding

on the mutt; but it was argued that the money was utilised in financing some litigation upon which the Zamindar of Chinnakimedi had embarked and

that the money had been subsequently repaid and credited to the general funds of the mutt, and so presumably utilised for mutt purposes. It is

suggested that the money upon receipt from the Zamindar of Chinnakimedi was used partly in discharge of the bills of food purveyors and partly in

meeting the necessary expenses of the late mahant in defending himself against a charge of murder. There is certainly room for doubt whether the

money recovered from the Zamindar of Chinnakimedi can be connected with the suit promissory note; but even if it can both the lower Courts

found that it had not been proved that the money received in execution was applied in discharge of debts borrowed for purposes binding on the

mutt. Although money was paid to food purveyors it does not appear t8 have been paid to them for food supplied; but rather to discharge the

principal and interest due on debts incurred for purposes unknown to us. With regard to the criminal case, one cannot say without reference to the

judgment and other evidence furnishing us with information regarding the nature of the case against him whether he was justified in using the mutt

property to defend himself. One can easily think of circumstances in which such a spending would not be warranted, although in many cases it

would. The lower Courts are not even satisfied that any part of the money went to meet these expenses. I am not prepared therefore to disagree

with the finding of the lower Courts on either of these points.

It is now argued for the first time, and that only in reply, that the mere fact that the money was received in the general accounts to the

enrichment of the mutt gives the right to the plaintiff to have recourse against the mutt property. I do not think that any such general principle can be

laid down that would be independent of all considerations how the late mahant had used the surplus money in his possession. Certainly it is not an

unmixed question of law and I do not feel justified in going into this question now. The memorandum of cross-objections is dismissed with costs.

Leave to appeal is granted with respect to the main appeal. With respect to the memorandum of cross-objections leave is refused.