LAIK, J. ( 1 ) THIS is defendant's appeal arising out of a suit for recovery of a sum of Rs. 33,240/7/6 as the balance of price of goods sold and delivered, total claim being laid at Rs. 34,450/4/7 with interest. The plaintiff is a Company incorporated under the Indian Companies Act and the defendant was described in the suit as follows:-"sm. Brojorani Dassi for self and as executrix under the Will of and/or Trustee to the estate of Soshi Bhusan Saha (deceased) and also as Shebait of Sri Sri Ishwar Radhagobinda Jieu located at 12, Kalidas Lane, Calcutta. " ( 2 ) THE plaintiff's case was that on April 4, 1917 the said Soshi Bhusan died leaving a Will dated January 13, 1917 possessed of properties moveable, immoveable and businesses. One of such businesses carried on by Soshi, prior to his death, was a wine shop under the name and style of Kensington Stores (hereinafter referred to as K. Stores) at 11 (now 10) Lindsay Street, Calcutta. By the said Will, Soshi (the testator) dedicated all the properties including the wine shop to the said deity Sri Sri Iswar Radhagobinda Jiew and appointed Brojarani, his second wife, as the sole Shebait of the said deity for the term of her natural life. Brojorani and Nandalal (Soshi's brother) were appointed as a executrix and executor respectively. The plaintiff's further case was that on diverse dates between March 12, 1956 and June 14, 1956 the plaintiffs sold and delivered various quantities of wines and spirits to the defendant and the plaintiff's claim is for the balance of the price of the goods delivered as stated above. ( 3 ) THE defence in short was that in pursuance of an order of this Court on or about March 22, 1938, the defendant Brojorani in her personal capacity purchased the said wine shop business with its appurtenances, stocks, assets and goodwill and since that time Brojorani has been carrying on the said business of K. Stores as the absolute owner thereof. The further defence was that since March 22, 1938 the said business ceased to form part of the estate of the said Soshi Bhusan or of the said deity. The further defence was that since March 22, 1938 the said business ceased to form part of the estate of the said Soshi Bhusan or of the said deity. It was also pleaded that neither the estate of Soshi Bhusan nor the said deity has any right, claim or interest in respect of the said business of the wine shop since the said date. It was also the defence that the suit was bad for misjoinder of parties, on the ground that Brojorani had not only been wrongly sued as executrix under the will but also as a trustee to the estate of Soshi Bhusan and also as a Shebait of the said deity. The defendant denied the liability in its entirety. ( 4 ) ON behalf of the plaintiff, the Director of the Company was examined and on behalf of the defendant, Brojorani's son Santosh gave evidence. An employee of the Exercise Directorate also gave evidence to prove the Exercise License tendered in the suit which is Ex. 2. There are also other documentary evidences. ( 5 ) THE suit came up for hearing before Ray, J. and the only question canvassed at the trial before him was "whether the defendant was the absolute owner of the business of Kensington Stores" and that was practically the only issue framed at the trial. ( 6 ) THE learned trial Judge inter alia came to the findings that the deity was the owner of the wine shop K. Stores and not Brojorani, that there was never any order for sale of the said shop, nor was there any legal necessity for sale. It was also found that in fact there had not been any sale or alienation. The learned Judge held that Brojorani had been sued in two capacities, i. e. , personally as well as Shebait of the said deity and the learned Judge decreed the suit in full against Brojorani in both capacities with interest. ( 7 ) BEING aggrieved by the said judgment and decree the defendant preferred the instant appeal. ( 8 ) IN order to appreciate the several contentions raised on behalf of the appellant and to find out their answer it would be necessary to state the following facts. ( 9 ) THE testator Soshi Bhusan had two wives, Nagendra Nandini and Brojorani, brother Nandalal and two sons, Provash and Santosh through Brojorani. ( 8 ) IN order to appreciate the several contentions raised on behalf of the appellant and to find out their answer it would be necessary to state the following facts. ( 9 ) THE testator Soshi Bhusan had two wives, Nagendra Nandini and Brojorani, brother Nandalal and two sons, Provash and Santosh through Brojorani. On January 13, 1917, as I have already stated, Soshi executed the will and dedicated his properties to the said deity. It was provided in the said Will that Brojarani would be the sole Shebait of the deity and after her death her said two sons Provash and Santosh would become the Shebait. Brojorani and Nandalal were appointed executrix and executor respectively of the estate and direction was given to the executors that if they found that there were losses in the wine shop (K. Stores) they would wind up the same. On April 4, 1917 Soshi died. On September 24, 1917 the probate of Soshi's will was granted to the said executrix and executor. ( 10 ) IN or about the year 1930, it appears that Provash was involved in insolvency proceedings in this Court and that he was a prisoner in the Civil side of the Presidency Jail. It also appears that Purna, one of the creditors of the insolvent, challenged the said endowment as invalid and contended inter alia that in any event the said wine shop did not vest in the said deity and was not a debutter property but the personal property of Provash. The said application was contested by Brojorani and Nandalal. The Registrar-in-Insolvency submitted his report on February 9, 1933 to the effect that there was a valid endowment in favour of the deity of the whole estate left by Soshi. Thereupon the said application of the creditor was dismissed on March 14, 1933. ( 11 ) ON March 8, 1938 an application in the goods of Soshi B. Saha, deceased was filed by Brojorani and Nandalal in the testamentary jurisdiction of this Court under the provisions of Section 302 of the Indian Succession Act and under the Indian Trust Act praying for certain directions including the discharge of its executor Nandalal on the ground of ill health. It was stated in the said application, that the wine business of K. Stores incurred a loss, the creditors were pressing hard for their dues, and that it would be beneficial for the estate to sell two of the immoveable properties, viz. , 29 and 31 Gardener Lane, Calcutta to pay off the said debts. The petitioners therefore prayed for directions as to whether they would sell the said properties, if so, within what price and after payment of the dues, whether the balance would be invested and also as to whether the business of K. Stores in Lindsay Street would be wound up. Provash and Santosh consented thereto. It is curious that in the said application the petitioners kept back from the Court as to what was the total liability of the said wine business though they appended a profit and loss account upto 31st December, 1937. ( 12 ) IN paragraph 4 of the said application, the items of all the properties left by Soshi have been given, but I do not find therein the mention of premises No. 29, Gardener Lane. The said application was affirmed on March 8, 1938 but the medical certificate showing the illness of Nandalal was dated as far back as on 1st September, 1937. On the said application, Ameer Ali, J. passed an order discharging Nandalal and liberty was given to Brojorani to sell the said two premises and to pay off all the dues of wine shop (K. Stores) and to invest the balance in the name of Brojorani as a shebait of the said deity. Liberty was also given to Brojorani to close the said business of K. Stores. ( 13 ) ON June 12, 1939 it appears another application was filed by Brojorani under the said provisions of the said Acts in this Court for further directions, viz. , for leave to complete the sale of the d two premises and to satisfy the debts of the said wine business (K. Stores ). It was stated for the first time in the said application that Brojorani was unable to find out a purchaser of the said wine shop, as the said business was running at a loss. Paragraph 9 of the application mentioned the assets and liabilities of the said business including her own dues from the deity to the extent of Rs. 18,577/14/3 pies. Paragraph 9 of the application mentioned the assets and liabilities of the said business including her own dues from the deity to the extent of Rs. 18,577/14/3 pies. ( 14 ) BROJORANI further stated therein, which is very material for the instant appeal, that "upon that your petitioner, with the consent of the next Shebaits the said Provash Chandra Saha and Santosh Kumar saha, closed down the business in this way, viz. , so far as the debottar estate is concerned it would no longer belong to the debottar estate and the business to be henceforward carried on by your petitioner herself. " Provash and Santosh again consented to the same. No prayer was made in both the said applications about the transfer to Brojorani personally of ownership of the said business of wine shop (K. Stores ). The deity also was not made a party in either of them. ( 15 ) ON June 15, 1939 Ameer Ali, J. after reciting "that the said wine shop business (Kensington Stores) has since been closed so far as the said debottar estate was concerned and is now carried on by the petitioner herself" passed an order on the said application of June 12, 1939 giving liberty to Brojorani to complete the sale on certain terms and to apply the balance in satisfaction of the debts of the said wine shop business (K. Stores ). There is no order for transfer of the ownership to Brojorani personally. ( 16 ) IT appears thereafter on September 26, 1939 a Deed of Mortgage was executed by Brojorani in her personal capacity in favour of the plaintiff (mortgagee) agreeing inter alia that the mortgagee would sell wines and liquors on credit to Brojorani, value thereof not exceeding the limit of Rs. 4000/- and further agreeing that Brojorani would pay to the plaintiff the daily sale proceeds of the said K. Stores till the credit was allowed and also agreeing that Brojorani would not purchase wines and liquors from any other person during the subsistence of the mortgage. In pursuance of the said agreement and other considerations, Brojorani describing herself as beneficial owner, mortgaged the Deoghar property in favour of the plaintiff. In pursuance of the said agreement and other considerations, Brojorani describing herself as beneficial owner, mortgaged the Deoghar property in favour of the plaintiff. In the recital portion of the said document on which strong reliance was placed by the learned Counsel for the appellant it was stated as follows "and whereas the mortgagor is absolutely entitled in her own right to the business of wine, liquor and general Oilman Stores etc. at present carried on under the name and style of Messrs. Kensington Stores or that may hereafter be carried on by the mortgagor or by her nominee or nominees, or successor or successors under any other name and style at 10, Lindsay Street in the town of Calcutta or at any other place or places. . . . . . . " The said Provash and Santosh were confirming parties to this document also. ( 17 ) IT appears further that at least from the accounting year 1348 B. S. (Income-tax year 1942-43) upto the year 1951-52 (1358 B. S.), Brojorani was assessed to Income-tax for several years in respect of all the properties including the said wine shop business, viz. , Kensington Stores, Deoghar property and the other admitted debottar properties, viz, 42 Rani Rashmoni Road and 8 Alimuddin Street. In the assessment orders passed in the years 1950, 1951, the Income-tax Officer proceeded on the footing that the said wine shop at K. Stores belonged to the said deity. Brojorani took appeals from the orders of I. T. O. to the Commissioner of Income-tax and got some relief in the year 1955 but neither before the Income-tax Officer nor before the Commissioner of Income-tax, Brojorani took any objection that there should be a separate assessment in respect of the said wine shop business and should not be mixed up with the income of debottar properties. On the other hand it seems Brojorani allowed the said wine shop to be treated as belonging to the said Deity from the accounting year 1941, at least till 1955. ( 18 ) MEANTIME, notices were issued by the Certificate Officer on Brojorani for payment of the Income-tax dues and it appears on May 29, 1957 an application under Article 226 of the Constitution was moved on behalf of Brojorani in her personal capacity before this Court challenging the validity of the Income-tax assessments and the consequent certificate cases. ( 18 ) MEANTIME, notices were issued by the Certificate Officer on Brojorani for payment of the Income-tax dues and it appears on May 29, 1957 an application under Article 226 of the Constitution was moved on behalf of Brojorani in her personal capacity before this Court challenging the validity of the Income-tax assessments and the consequent certificate cases. Though it was stated therein that the said Soshi Bhusan dedicated all his properties to the deity and Brojorani was the sole Shebait thereof, it was nowhere stated in the said application that Brojorani personally became the owner of the wine shop business on or after March 22, 1938, as it is contended in the instant appeal. ( 19 ) THERE are other series of documentary evidences, viz. , cash bills, challans, counterfoils in the bill books, excise passes, between the period March 1954 and June 1956. The plaintiff also proved certain entries of its account books between April, 1956 and 4th of August, 1956 and the entries in the journals from March 12, 1956 to 14th June, 1956 which showed that the supplies were made to K. Stores. The next series of documents are correspondences between the plaintiff and Kensington Stores on the one hand and between them and the Wine Association on the other, between June and August 1956 which proved dealings with Kensington Stores only, and one of the letters, viz. , dated August 11, 1956, in which it was communicated to the plaintiff that K. Stores were prepared to charge their property at Deoghar for the plaintiff dues. ( 20 ) ON July 15, 1956 one Haran Dutt obtained an ex parte decree against Brojorani personally, in a Small Causes Court suit, being Suit No. 3063 of 1956, for a sum of Rs. 1151/9/6 pies. In execution of the said decree, the goods of Kensington Stores were attached on August 2, 1956. Brojorani filed an application on August 6, 1956 under the provisions of Order 9, Rule 13 of the Code of Civil Procedure, for setting aside the said ex parte decree. Brojorani stated in the said application that the properties of Messrs. Kensington Stores which were attached, were the properties of the debottar estate of Sree Sree Ishwar Radhagobinda Jiew amongst its other properties. Brojorani stated in the said application that the properties of Messrs. Kensington Stores which were attached, were the properties of the debottar estate of Sree Sree Ishwar Radhagobinda Jiew amongst its other properties. ( 21 ) THEREAFTER on August 11, 1956, it appears that a suit being Suit No. 3673 of 1956 was instituted before the 4th Bench in the Court of Small Causes, Calcutta, by the said deity, Radhagobinda Jiew through Shebait Brojorani, against the said Haran Dutt praying for a decree for a sum of Rs. 3000/- with costs and compensation and further praying that the properties of K. Stores which are attached, should be released on the ground "that the claimant is the absolute owner of the wine shop, viz. , Messrs. Kensington Stores and the judgment-debtor of the suit No. 3063 of 1956 has no right, title and interest therein in her personal capacity" (Paragraph 1 (b) of the plaint ). Along with the plaint, a copy of the will, the finding of the Registrar-in-Insolvency and the order dated March 14, 1933 were also filed by Brojorani as Shebait of the Deity, in support of the statements made in the plaint. Brojorani herself signed the plaint and Santosh (her son and plaintiff's witness in the instant suit) verified. ( 22 ) ON August 21, 1956 the said suit was "treated as withdrawn with leave" on plaintiff's prayer, but there is nothing on the record to show that the said application for setting aside the ex parte decree was also withdrawn. ( 23 ) ON September 11, 1956 the suit out of which the instant appeal arises, was instituted. On or about November 27, 1956, the plaintiff respondent herein made an application praying for a judgment against the defendant for the admitted sum of Rs. 20,000/- under the provisions of Chapter XIIIA of the Rules of the Original Side of this Court which was passed by Amal K. Sarkar, J. on February 13, 1957 with express reservation that the said decree was without prejudice to the right of the plaintiff respondent to proceed with the suit for the balance of its claim in the suit against the defendant and for its entire claim in the suit against the defendant in her capacity as the said executrix and trustee and/or Shebait. ( 24 ) ON February 4, 1957 a suit (No. 283 of 1957) was filed in this Court by Harendra (Santosh's son) as next friend of the said deity against Brojorani both personally and also as Shebait of the said deity, praying for a declaration that two properties (one, premises No. 8 Munshi Alimuddin street and the other, viz. , the Deoghar property "brojodham") belonged to the deity and formed and still formed then part of the debutter estate which Brojorani was claiming as her personal properties. Provash and Santosh were also impleaded as defendants thereto. It is interesting to notice that the wine business of K. Stores was not stated to be one of such properties as sought to be claimed as Brojorani's personal property. We are informed that the said suit was thereafter decreed. ( 25 ) THE plaintiff respondent executed the said decree passed by Sarkar, J. in the Court of Subordinate Judge at Deoghar in the State of Bihar and attached the said Deoghar property (Brojodham) in or about the first week of November, 1957. ( 26 ) ON November 27, 1957 Brojorani, both in her personal capacity and as Shebait of the deity, in an application for rectification of the said decree of Sarkar, J. for putting in the word 'personally' after the word 'defendant' in the said decree, stated that she had no personal properties at Deoghar except the attached property 'brojodham' which is debutter and affirmed that the execution proceedings were wrongfully started, seeking to attach the said debutter property, which belonged to the Deity and prayed that unless the decree was rectified, the debutter estate would be seriously prejudiced. The said application was allowed and the decree was rectified accordingly. ( 27 ) ON August 5, 1959 A. N. Roy, J. decreed the suit for the entire claim against the defendant and made it specifically clear that the decree was against the defendant in two capacities, viz. , personally and as Shebait, i. e. , also against the debutter estate. Being aggrieved by the said decree and the judgment, the instant appeal has been preferred by the defendant. , personally and as Shebait, i. e. , also against the debutter estate. Being aggrieved by the said decree and the judgment, the instant appeal has been preferred by the defendant. ( 28 ) ON or about November 16, 1959 an application was filed on behalf of the appellant praying for an injunction restraining the respondent company from executing the decree on which the Appellate Court passed an order on December 7, 1959 asking the appellant to furnish security for the sum of Rs. 40,000/- before January 4, 1960, in default the application would stand dismissed. ( 29 ) IT appears that on December 18, 1959 the said deity filed another suit in this Court, through the said next friend Harendra against the defendant appellant inter alia praying that the said decree dated 5th August, 1959 was not binding on Brojorani as Shebait. It was also prayed that Brojorani should be removed from Shebaitship. In the said suit, Brojorani as well as the plaintiff company respondent and also Provash and Santosh were made defendants. As usual, an application for an interim order restraining the respondent company from executing the said decree dated August 5, 1959 was made by Harendra as next friend in the said suit, which was not granted by Ray, J. , on December 23, 1959. On December 24, 1959 the appellant files another application for extension of time to file security and prayed for leave to give debutter property as security. The time was extended upto January 11, 1960. On January 4, 1960, Brojorani offered the premises No. 8, Munshi Alimuddin Street as security. On January 21, 1960 the appellant offered another debutter property, viz. , premises No. 42, Rani Rashmoni Road (formerly Free School Street) as further security. On the next date, i. e. , on January 22, 1960 the appellant filed another application for further extension for furnishing security and prayed for directions on the Registrar-in-Insolvency to accept the debutter properties as securities, as offered on behalf of the deity. The defendant appellant stated in the said application that Brojorani as Shebait was competent to offer debutter property as security inasmuch as the deity is also the appellant in the above appeal. ( 30 ) MR. The defendant appellant stated in the said application that Brojorani as Shebait was competent to offer debutter property as security inasmuch as the deity is also the appellant in the above appeal. ( 30 ) MR. Subimal Roy, the learned Counsel appearing on behalf of the defendant appellant, contended firstly that after the said decree passed by Sarkar, J. , under Chapter XIIIA in favour of the plaintiff against Brojorani personally, which under the Original Side Rules was final, there was no room for further decree against the deity or against the debutter estate. Submitting that claim in the suit was based upon a contract and as there was no allegation or averment in the pleading that both Brojorani and the deity jointly purchased the goods, the decree against both was not permissible. Secondly, assuming that two inconsistent remedies were open and available to the plaintiff but the plaintiff having made an election in having the said personal decree against Brojorani, the other remedy against the deity was not available. ( 31 ) I may say at the outset that this point was not taken in the trial Court but we have allowed Mr. Roy to take the same here, being purely a point of law. We are satisfied that there is no substance in this contention. There are averments of the joint liability of Brojorani personally and also as a Shebait on behalf of the deity. If we refer to paragraph 7 of the plaint we find that it specifically states that the plaintiff sold the goods to the 'defendant' meaning thereby personally as well as a Shebait of the Deity. I have fully stated above how the defendant was described in the plaint. The entire trial proceeded on the said footing and that is practically the only issue. Both oral and documentary evidences were laid as to whether the goods were also sold to the deity or not and the defendant attempted to meet the case only by alleging that the deity ceased to be the owner of Kensington Stores from 1938. Brojorani practically admitted her personal liability apart from her legal objections. ( 32 ) MOREOVER, the principles of Order 12, Rule 6 of the Code of Civil Procedure are applicable in decrees passed under Chapter XIIIA of the Original Side Rules. Brojorani practically admitted her personal liability apart from her legal objections. ( 32 ) MOREOVER, the principles of Order 12, Rule 6 of the Code of Civil Procedure are applicable in decrees passed under Chapter XIIIA of the Original Side Rules. The discretion of the Court, has been exercised in this case and, in our view, rightly. It would be lamentable if the discretion which for the ends of justice has been left free and untrammeled by the Legislature were to becrystallised by judicial decisions, as it would become in course of time, by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion which must be applied with due regard to the varying circumstances of each particular case. In my opinion no hard and fast tests can be laid down for the exercise of that discretion. ( 33 ) THE second branch of his first argument is also equally unsustainable. There is no question of election here. Remedies are not inconsistent. The basis of the argument of Mr. Roy that there are two inconsistent remedies, is fallacious. As the liability for the sum of Rs. 20,000/- was admitted, there was a decree for the said amount against Brojorani personally, 'without prejudice' to the plaintiff to have a decree against the deity, if the same could be proved in the trial. In aid of his argument Mr. Roy placed the decision of the House of Lords, Scart v. Jardine, (1) 7 AC 345. The facts in the said decision are entirely different. In the said case a firm of two partners dissolved; one retired and the other carried order the business with a new partner under the same style. A customer of the old firm sold and delivered goods to the new firm after the change but without notice of it. After receiving notice, he sued the new firm for the price of the goods, and upon their bankruptcy proved, against their estate; and afterwards brought an action for the price against the late partner. A customer of the old firm sold and delivered goods to the new firm after the change but without notice of it. After receiving notice, he sued the new firm for the price of the goods, and upon their bankruptcy proved, against their estate; and afterwards brought an action for the price against the late partner. In those circumstances it was held by Lord Selbourne L. C. , the other Law Lords concurring, that the liability of the late partner was a liability by estoppel only and not jointly with the members of the new firm; that the customer might at his option have sued the late partner or the member of the new firm but could not sue all three together; and that having elected to sue the new firm he could not afterwards sue the later partner. In the instant case there are no two suits. The same suit continued. Only thing is that there was a decree for a portion of the claim against Brojorani personally under Chapter XIIIA of the O. S. Rules. Hence, the plaintiff had nothing to elect in the instant appeal. Election is a rule of equity and the defendants must do equity before claiming equity. ( 34 ) THE decision of Cross and Co. v. Mathews and Wallace, (2) 91 Law Times 500 was also cited on behalf of the appellant on the point of election. There, two defendants (Mandw) having been sued in the High Court for goods sold and delivered, judgment was entered against 'm' and the action as against 'w' was remitted for trial to the Country Court. At the trial it was found that the debt was contracted by 'w' alone and that 'm' had merely acted as his agent. Judgment was postponed and the judgment against 'm' was set aside. The learned County Court Judge then entered judgment against 'w'. In those circumstances it was held that the judgment against 'w' was wrong, as the plaintiffs had conclusively elected to enforce their remedy against 'm', because the fact of a judgment having been signed against 'm' showed an election on the part of the plaintiffs to accept the liability of the agent. In those circumstances it was held that the judgment against 'w' was wrong, as the plaintiffs had conclusively elected to enforce their remedy against 'm', because the fact of a judgment having been signed against 'm' showed an election on the part of the plaintiffs to accept the liability of the agent. If in the instant case the suit against both would have culminated in a decree only against Brojorani personally for the entire claim and if a fresh suit for the same claim would have been instituted against the deity, there might have been argument on the above principles of election. The facts in the present case are different. Moreover, Sarkar, J. , gave the liberty to the plaintiff to proceed with the suit against the deity. To this express grant of liberty without prejudice in the said decree again Mr. Roy objected and placed before us the decision of the Judicial Committee in Fateh Singh v. Jagannath Baksh Singh, (3) 52 IA 100 and contended that Sarkar, J. , had no power to give such liberty to proceed with the suit for the rest of the claim or for the entire claim against the Deity. In my view this contention is also not sound. In the above decision the distinguishing feature is that the suit was dismissed and there was neither any application for leave to withdraw the suit nor was it withdrawn. Their Lordships of the Judicial Committee laid down the principles that the power of the learned Judge ceased, upon the dismissal of the suit and therefore held that the Judge had no power to grant the liberty. But in the instant case, there was no dismissal of the suit which was in fact kept alive and continued. We need not go so far as to apply the principles laid down in Oliver v. N. s. Shipping Company, (4) [1903] 2 KB 639 and Ulsworth v. Elder Dempster, (5) p1940] 1 AER 362, relied on by Mr. Siddhartha Roy, learned Counsel on behalf of the respondent for the meaning of the words, 'without prejudice' written on the receipts, raised under the Workmen's Compensation Act. Mr. Roy's first contention, therefore, fails. ( 35 ) MR. Siddhartha Roy, learned Counsel on behalf of the respondent for the meaning of the words, 'without prejudice' written on the receipts, raised under the Workmen's Compensation Act. Mr. Roy's first contention, therefore, fails. ( 35 ) MR. Roy then contended that the interest of Brojorani was adverse to the deity and as there was a clear conflict of interest, right and duty between Brojorani in her personal capacity and the deity in respect of the debutter estate the plaintiff should have impleaded the deity as a defendant through a next friend if the plaintiff wanted to make the debutter estate liable. He cites the Privy Council decision in Pramatha v. Pradyumna, (6) 51 IA 245. Mr. Roy further contended that if the principle laid down in the said case had been followed, the deity through the said next friend could have said that the contract for purchase of goods was not for legal necessity. Mr. Roy also stated that not one of the defences which the deity could have taken in the instant suit has been taken by Brojorani as Shebait because of the said inconsistency of her position. ( 36 ) I cannot persuade myself to accept these contentions also. From the series of facts noticed above in details, it would appear that though Brojorani tried to assert at one point of time that the Kensington Stores belongs to her absolutely but she did not stick to the same. I have little doubt that Brojorani tried and is trying here to save the debutter property if she can and in my view there is no conflict of interest and duty between her personal capacity vis-a-vis the deity in respect of the debutter estate. The plaintiff really wants the decree against the deity and Brojorani tried to avoid such decree being passed against the deity, by contending that she purchased the goods in her personal capacity. We are also satisfied that all the possible defenses that could have been taken on behalf of the deity was taken by Brojorani in the instant suit and appeal. If Mr. Roy's contention is given effect to, one would have expected Brojorani to say in her written statement that she was not competent to represent the deity as a Shebait in the suit because of the inconsistency. If Mr. Roy's contention is given effect to, one would have expected Brojorani to say in her written statement that she was not competent to represent the deity as a Shebait in the suit because of the inconsistency. On the other hand, it would appear that she stuck to the position of a Shebait of the said deity in respect of all the properties including the said Kensington Stores all through and even on January 22, 1960 she affirmed a statement in an application before the Appellate Court in the instant appeal that she as Shebait was competent to offer the debutter property as security. ( 37 ) THE principles laid down in 51 I. A. 245 (6) (supra) are also not applicable to the instant case. In the said decision the will of the Idol as to its location was not and accordingly the suit was remitted to the Court below so that the Idol might appear by a dis-interested next friend to be appointed by the Court and to express its will. In that case the contest related to the establishment of new rights as between the contesting Shebait is being represented in the instant case through Brojorani as the only Shebait who is acting in the best interest of the deity, and there is no other contesting Shebait. Moreover no application was filed nor was it suggested even during the whole course of the argument before us that the Idol should appear by a dis-interested next friend appointed by the Court. The Rules laid down in the said Privy Council decision was a matter of expediency, a means to serve the ends of justice which we do not think it necessary to pass in the instant case. ( 38 ) THE next contention of the appellant was that there was no legal necessity for the claim in the suit, and the onus was on the plaintiff to plead and prove legal necessity in order to bind the debutter estate. When that is not done, the plaintiff should not get the decree against the deity or the debutter estate. I cannot accept this contention also. The question of legal necessity is a mixed question of law and fact. The same has not been pleaded by the defendant. No issue has been raised. No ground has been taken in the Memorandum of Appeal either. I cannot accept this contention also. The question of legal necessity is a mixed question of law and fact. The same has not been pleaded by the defendant. No issue has been raised. No ground has been taken in the Memorandum of Appeal either. It is for the first time that Mr. Roy sought to argue the said point here before us. What construes a necessity or benefit, must undoubtedly depend upon the circumstances of each case and it is not possible to formulate any rigid or exhaustive definition for all cases. Here the goods were sold to the deity who made profits out of the same and the said fact is proved by the Income-tax papers and it is amazing to hear the deity's counsel to say that his client won't pay the price thereof. Another argument of Mr. Roy was that the plaintiff ought to have made reasonable enquiries before delivery of goods. In answer, Mr. Siddhartha S. Roy relied on the decision of Sri Thakur Ram Krishna Muraji v. Ratan Chand, (7) 58 IA 173, but in my view the principle laid down there is not also applicable here. The present case is not a case of taking a loan on behalf of the Deity but a case of purchase of goods at the adequate price, as neither party suggested that the goods were not sold at the real price. Hence, enquiries, as necessary for other cases, are not required here. There was no question of onus on the plaintiff in the facts of this case. ( 39 ) MR. Roy further contended that the judgment and the reasonings of the learned trial Judge on merits also are wrong and ought to be set aside. He relies on six documents, viz. , two applications dated March 8, 1938 and June 12, 1939 and two orders of Ameer Ali, J. , dated March 22, 1938 and June 15, 1939 respectively and the deed of mortgage dated September 26, 1939 and the Excise License dated May 13, 1959. It is contended that the said documents will be lead to the conclusion that from March 1938 Kensington Stores was no longer debutter property but Brojorani's personal property. The delivery of goods for the relevant period was therefore made to Brojorani personally and not to the deity. I am unable to accept the above contention. It is contended that the said documents will be lead to the conclusion that from March 1938 Kensington Stores was no longer debutter property but Brojorani's personal property. The delivery of goods for the relevant period was therefore made to Brojorani personally and not to the deity. I am unable to accept the above contention. I affirm the findings and the reasonings of the learned trial Judge in that respect. It was a definite case of the defendant in the written statement that Brojorani in her personal capacity "purchased" the business (wince shop with all its stock, assets and goodwill ). Santosh, the defendant's main witness also definitely stated (Q. 13) that the deity "sold" to Brojorani the said business. But admittedly there is no document of purchase. Oral sale of the said property is neither suggested nor permissible under the law. The two applications and the orders passed thereon do not help the defendant either. There is no prayer in both the applications for sale or transfer of the business of wine shop to Brojorani personally and Ameer Ali, J. did not pass that order also. Only June 15, 1939 there is only a recital that the wine shop business has since been closed so far as the debutter estate is concerned and is now carried on by the petitioner herself (Brojorani ). The said recital only follows the statement made in that application of Brojorani and is of no effect, as there is no decision and no effective order as to that. Moreover, in the two applications and in the two orders referred to above, the deity was not made a party at all and I fail to understand how the learned Judge under the provisions of the Indian Succession Act and the Indian Trusts Act and in the absence of a deity can pass an order affecting the property of a deity, even assuming that there are definite orders to that effect. Santosh who came to give evidence for her mother Brojorani, stated definitely (Q. 28) that Brojorani personally became the owner of the property in 1952-52. He also could not deny (Q. 63) whether the deity was the owner of K. Stores in 1956. ( 40 ) REGARDING the mortgage of September 26, 1939 there is a recital about Brojorani's assertion of personal right over the wine shop business (Kensington Stores ). He also could not deny (Q. 63) whether the deity was the owner of K. Stores in 1956. ( 40 ) REGARDING the mortgage of September 26, 1939 there is a recital about Brojorani's assertion of personal right over the wine shop business (Kensington Stores ). Deoghar property (Brojodham) was also stated there therein to be acquired by her out of her Stridhan money. The plaintiff as mortgagee, was stated to have acted on that mortgage. I may say that Brojorani made a false recital so far as the only mortgaged property, viz. , Brojodham is concerned. The same was all along a debutter property. The same was treated as such, before the Income-tax authorities from 1941 to 1955 and was offered as a security as a debutter property even before the appellate Court in this appeal. The said assertion of Brojorani's personal right over K. Stores appear only in the recital portion and not in the operative portion. The deity also was not a party to the said mortgage deed. Provash and Santosh were joined as confirming parties to the said mortgage deed because in our view both K. Stores and Deoghar property were debutter. I need not repeat the other reasonings given by the learned trial Judge which I affirm. For these reasons this part of Mr. Roy's argument also fails and is not accepted. ( 41 ) THE excise license, which is Ex. 2, sought to be relied on by Mr. Roy, appears both in the name of Brojorani personally and one S. K. Shaw, but the period of the license is from April 1, 1959 to March 31, 1960, i. e. , after the institution of the instant suit and we cannot rely on the same. ( 42 ) THE following facts and circumstances are also to be taken note of. ( 43 ) THE defendant did not produce the account books, cash books or ledgers of the relevant period in which the goods were delivered. We are entitled to draw adverse inference against the defendant appellant for the non-production of the same. The cash bills, challans and the entries in the bill books and the correspondences, all show that the goods were supplied to 'kensington Stores' and in my view the said documents are neutral documents and do not support the plaintiff respondent either, as sought to be argued by Mr. Siddhartha Roy. The cash bills, challans and the entries in the bill books and the correspondences, all show that the goods were supplied to 'kensington Stores' and in my view the said documents are neutral documents and do not support the plaintiff respondent either, as sought to be argued by Mr. Siddhartha Roy. ( 44 ) THOUGH there AIR the admissions of the deity in Haran's suit and in the application under Order 9, Rule 13 dated August 6, 1956, that the Kensington Stores belong to the deity, Mr. Roy relied on the fact that the said suit was withdrawn and the admissions lost their force and they will not help the plaintiff. Even assuming that it is so, the application under Order 9, Rule 13 for setting aside the exparte decree was not withdrawn and Brojorani's admissions made therein stand. Again in the application under Article 226 of the Constitution, it was nowhere stated, that Brojorani personally became the owner of the wine shop business on or after March 22, 1938. It is also interesting to notice that in the suit by the deity filed in 1957 through Harendra as next friend, the Deoghar property (Brojodham and premises No. 8 Alimuddin Street) were declared to be debutter properties against Brojarani. Brojorani herself did not depose, though she was in Calcutta (Santosh, Q. 159-160 ). The whole evidence of Santosh is an interesting reading and it demolishes the defence case. Moreover, when two of the debutter properties were ordered to be sold to liquidate the debts in full, how is it, that Brojorani as Shebait sold K. Stores to herself personally - a story difficult to believe. ( 45 ) MR. Roy contended that even if the case of purchase or sale is not upheld there was at least termination of the wine shop business so far as the deity is concerned, by the said six documents. This is an argument in despair and the same does not commend to us in the least. ( 46 ) MR. Roy next contended that the purchase of the wine stores by Shebait Brojorani is not per Secondary Education void but voidable and the plaintiff is not entitled to challenge it. In support of his argument he referred us to the decisions in Peary v. Manohar, 48 IA 258, and the High Court decision of Manohar v. Peary, 30 CLJ 177 at p. 191. In support of his argument he referred us to the decisions in Peary v. Manohar, 48 IA 258, and the High Court decision of Manohar v. Peary, 30 CLJ 177 at p. 191. This argument should not detain us as we have held that there is in fact no purchase by the Shebait. Though we are not laying down the proposition that there is absolute bar to the Shebait in acquiring the debutter property but we are not called upon to finally decide the said question. ( 47 ) IT is also argued that there was no averment in the plaint that the wine shop of K. Stores was of the deity or that transaction was anything to do with the debutter estate nor is there any relief claimed against the deity. Therefore, Mr. Roy contended, that no judgment can be passed against the deity or the debutter estate. This argument has also no force as I have already stated that the defendant has been sued in both the capacities, i. e. , personally and also as a Shebait of the deity and the suit is decreed, in our view, rightly, against Brojorani in both the capacities. In our view, the deity is a party to the suit, decree has been passed against the deity and the deity is one of the appellants before us. The decision of Ram Krishna v. Mohunt Padma Charan, (10) 6 CWN 663 was cited in support of the argument that the debutter property could not be proceeded with. There Rampini, J. differed from Gupta, J. and the case was referred to Maclean, C. J. as a third Judge, who held that the decree was against the Shebait personally and not against him in the character of Shebait, which is not the case here. Moreover, no reasoning was given there. ( 48 ) MR. Roy then contended that the form of the decree is defective. He stated that in the first instance it should have been passed against Brojorani personally and a date ought to have been fixed for the payment of the money by Brojorani personally and failing that it could have been realised from her beneficial interest only as a Shebait and no decree should have been passed against the debutter estate. For the said proposition Mr. For the said proposition Mr. Roy relied on Niladri Sahu v. Mohaunt Chaturbhuj, (11) 53 IA 253 and Prosunno Kumari v. Golab Chand (12) 2 IA 145. In Niladri Sahu's case the mortgage money was payable out of the Shebait's share in the income of the debutter property which really belonged to him personally and not out of the rents and profits of the endowment but it cannot be disputed as a proposition of law that if it is proved that the deity purchased the goods or a debt was contracted by the deity for legal necessity, the money due property, no matter whether the debt was secured or not. ( 49 ) LASTLY, Mr. Roy contended that the amount decreed both by Sarkar, J. and Ray, J. far exceed the total claim made in the suit itself and in any event, Mr. Roy submitted that the decree appealed from must be set aside and be substituted. The learned counsel for the Respondent contended to the same. We are also of opinion that the said contention has force and is to be accepted. The following order is therefore passed: ( 50 ) THE decree passed by the learned trial Judge on August 5, 1959 be set aside and in lieu thereof the following decree be passed: (1) The entire claim of the plaintiff for the principal sum of Rs. 33,240. 47 np. is decreed against the defendant Sm. Brojorani Dassi as Shebait of the deity Sree Sree Ishwar Radha Gobinda Jieu with interest at 6 per cent. per annum from February 13, 1957 until realisation. (2) In addition to the decree dated February 13, 1957 passed in the suit by the Hon'ble Mr. Justice Amal Kumar Sarkar for the sum of Rs. 20,000/- under Chapter XIIIA of the Rules of the Original Side of this Court, the claim of the plaintiff for the balance sum of Rs. 13,240. 47 np. out of the said total claim of Rs. 33,240. 47 np. will also be decreed against the defendant Sm. Brojorani Dassi personally. It is further ordered and decreed that the said defendant Sm. Brojorani Dassi personally do pay interest on the balance principal sum of Rs. 13,240. 47 np. @ 6 per cent. per annum from February 13, 1957 until realisation. 33,240. 47 np. will also be decreed against the defendant Sm. Brojorani Dassi personally. It is further ordered and decreed that the said defendant Sm. Brojorani Dassi personally do pay interest on the balance principal sum of Rs. 13,240. 47 np. @ 6 per cent. per annum from February 13, 1957 until realisation. (3) It is also ordered and decreed that the plaintiff company will be entitled to realise the total decretal amount payable under this decree as also under the said decree dated February 13, 1957 from the defendant Sm. Brojorani Dassi personally and also out of the corpus and income of the entire estate belonging to the deity Sree Sree Ishwar Radha Gobinda Jieu. (4) The defendant Sm. Brojorani Dassi personally as well as Shebait of the said deity do also pay to be plaintiff company its costs of the suit including reserve costs, if any, and also its costs of this appeal (to be taxed by the Taxing Officer of this Court as of a defended suit and appeal respectively) and this Court doth certify that this is a fit case for engaging two advocates both for the suit and the appeal. The plaintiff company will also be entitled to realise the amount of costs aforesaid, out of the corpus and income of the entire estate belonging to the deity Sree Sree Ishwar Radha Gobinda Jiew. Appeal allowed.