PUTTAVEERAMMA v. KRISHNANANDASARASWATHI SWAMIGALU — 1973 DIGILAW 216 (KAR)

( 1 ) THE appellants are the legal representatives of the plaintiff; respondents are defendants. The suit in the trial Court was filed for a declaration of title and possession of the land S. No. 37, measuring 10 acres 19 guntas, which was purchased by the plaintiff in a Court sale in execution of a money decree obtained by him against the 1st defendant who is the swamiji of Balakrishnananda Mutt located in T. Narasipur Taluk, Mysore district. The second defendant is the State of Mysore. On 16-9-1946, the state Government took over the management of the Mutt and its properties under S. 25 of the Mysore Religious and Charitable Institutions Act, (Act VII of 1927 ). The 3rd defendant is the Tahsildar who exercises the powers under the Act. Defendants 4,5 and 6 are the tenants inducted by the Government in pursuance of the sale of the rights of cultivation under a five years' lease. Both the lower Courts dismissed the plaintiff's suit. ( 2 ) THE first defendant remained exparte. Defendants 2 and 3 pleaded that the first defendant contracted several debts without any legal necessity or for the benefit of the Mutt and all such debts are illegal and not binding on the Mutt properties. It was also pleaded that the decree obtained by the plaintiff and the subsequent sale and delivery proceedings are illegal, fraudulent and collusive that the first defendant had no power to contract debts for and on behalf of the Mutt and that the decree and the execution and other proceeedings even if true do not bind the Mutt since the suit schedule property was not liable to be attached or sold for realisation of the decretal amount. ( 3 ) ISSUE No. 3 framed in the suit is whether the pronote debt in small Cause Suit No. 1115/44-45 on the file of the Additional Subordinate judge's Court and the decree obtained thereon is illegal vitiated by fraud and not binding on the defendants. It was submitted on behalf of the appellants that the debt on which the decree was obtained was not a debt on a promissory note, and the reference to the debt as pronote debt in the said issue in a mistake. The trial Court held that the decree obtained against the first defendant was in his individual capacity and not aa head of the Mutt. The trial Court held that the decree obtained against the first defendant was in his individual capacity and not aa head of the Mutt. It further held on issue No. 3 that it was not open to the court at this length of time to go into the question of validity or otherwise of the decree and that whatever may be the nature of the decree it was against the 1st defendant and that it cannot have any effect on the other defendants or the suit schedule properties. The legal representatives of the plaintiff went up in appeal to the Court of the Civil Judge, Mysore. The lower appellate Court also held that the decree obtained by the plaintiff was against the 1st defendant personally. Since it was proved that the 1st defendant has his own private property and since there was no evidence that the first defendant borrowed for legal necessity of the Mutt, the lower appellate Court held that it does not bind the Mutt properties. It was contended on behalf of the appellants when the present appeal came up for hearing on an earlier occasion that the findings of the lower Courts both with regard to the decree being only against the person of the first defendant and not as head of the Mutt, as well a that the decree is not binding, on the Mutt properties as the debt incurred by the 1st defendant was not for legal necessity are findings on questions which are not covered by the issues in the case. Hence, two additional issues were framed and the trial Court was directed to afford the parties opportunity to adduce fresh evidence on the two additional issues and to record its findings thereon. The two additional issues are, firstly, whether the decree in the small Cause Suit No. 1115/44-45 was obtained against the first defendant in his capacity as head of the Mutt; and secondly, whether the debts sued upon in Small Cause Suit No. 1115/44-45 contracted by the first defendant were for the purpose of legal necessity and binding on the Mutt. PWs. 4 and 5 were examined on behalf the plaintiff and Exts. P7, P7 (a) and P7 (e) were produced before the lower Court. The lower Court has given its findings on the two additional issues in favour of the plaintiff. PWs. 4 and 5 were examined on behalf the plaintiff and Exts. P7, P7 (a) and P7 (e) were produced before the lower Court. The lower Court has given its findings on the two additional issues in favour of the plaintiff. It has held that the decree in the Small Cause Suit was obtained against the 1st defendant in his capacity as head of the Mutt and further that the debts sued upon in the Small Cause Suit are contracted by the first defendant for the purpose of legal necessity and that they are binding on the Mutt of which the first defendant was the Head. ( 4 ) MR. Krishnamurthy, the learned Counsel for the appellants contended that though the small cause suit was filed against the first defendant without describing him as the head of the institution, he was the head of the Mutt and the nature of the debt is one which was binding on the Mutt and that therefore, the Mutt properties were liable to be sold in execution of the decree obtained by the plaintiff-appellant. He next contended that the appellant obtained symbolical possession on 19-12-1948 and the suit having been filed within 12 years from that date viz. , 13-8-1960, there is no bar of limitation. He relied upon the decision of this Court in v. S. Mangaraja Shetty v. C. K. Subbaiah, (1969) 1 Mys. L. J. 183. ( 5 ) IN Mohabir Das v. Jamuna Prasad Sahu, AIR. 1929 Pat. 543 it has been held that although the property devoted to religious purposes, is as a rule, inalienable, it is competent to the Court to direct the sale of such property if it is satisfied that the loan was raised for a necessary purpose. The statement of the law laid down by the Privy Council in Prosueno Kumari Debya v. Gulab Chand Baboo, 2 I. A. 145 is that the authority of the shebait of an idol's estate would appear to be in this respect," that is to say, in respect of charging the properties of the idol, anologous to that of the manager of an infant heir". Mr. Krishnamurthy relied upon a number of decisions relating to the position of the manager of a joint Hindu family when sued without describing him as manager. In Papannasam Chetiiar v. Mut^ayya cheliiar, AIR. 1946 Mad. Mr. Krishnamurthy relied upon a number of decisions relating to the position of the manager of a joint Hindu family when sued without describing him as manager. In Papannasam Chetiiar v. Mut^ayya cheliiar, AIR. 1946 Mad. 625, it has been held that a family is bound by a decree passed against the manager if it appears that in fact he was the manager and the suit related to joint family liability, that it must be presumed that he was suing or being sued in his representative capacity and that even the omission to state in the decree that it was passed against him in such capacity does not prevent the decree from being against the entire family. The earlier decision of the same Court in Venkatanarayana v. Venkata Somaraju, AIR. 1937 Mad. 610, FB was explained and it was stated that the said Full Bench decision does not lay down that in every case where a person who happens to be the manager of a joint family is sued, he must for all purposes represent every other member of the family. It was also observed that cases can be conceived where the manager's interest are adverse to those of the family or where he has beeni in active collusion with the plaintiff in the suit or he may even be grossly negligent in the conduct of the case and in such cases it cannot be said that the manager represented the joint family. In K. Koitdappa v. Papattna, 6 Mys. L. J. 317, it hag been held that the judgment-debtor being the manager of the family and the debt one due by the whole family, the other members of the joint family were properly and effectively represented by the managing member and the decree bound them even though they were not impleaded in the suit. The form of the suit did not indicate that he was sued in a representative capacity. The suit was for recovery of municipal taxes, a debt which the family was bound to discharge This decision was followed in the Full Bench in Channabasave Gowda v. Rangeygwda, AIR. 1951 Mys. 38, FB it has been held that it is only in case the debt is binding on all the members of a joint family that a suit filed against the manager as such is binding on the other members of the family. 1951 Mys. 38, FB it has been held that it is only in case the debt is binding on all the members of a joint family that a suit filed against the manager as such is binding on the other members of the family. In Gyan Dat t v. Sada Nando, Lal, AIR. 1938 All. 163, it was held following the decision in ILR. 34 All. 549, ILR. 34 All. 549 that in the case of a Hindu joint family it is not necessary that a person who sues or is being sued in a representative character should be described as the manager of the family and that all that is essential is that the manager is in fact suing or being sued as such in respect of a family debt. In Mulcund Co-op. Credit Society v. Shidlingappa Ishwarappa Manvi, AIR. 1941 Bom. 385 it has been held that when the manager has contracted debts for family purposes and is sued in respect of those debts, there is a presumption that he is sued in the representative capacity so that the decree is binding on all the coparceners. In Bujhawan kuer v. Basman Rai, AIR. 1953 Pat. 173 it has been held that a decree against the manager of a Hindu joint family representing the family with regard to a debt which had been contracted by him for family necessity is binding on all the members of the family, even though he is not described as the manager representing the other members of the family in the suit. In Kumaji Sare mal film v. Kalwa Devadattam, AIR. 1958 AP. 216 it has been held that a decree obtained against the manager of the joint Hindu family will bind the other members of the family, even in cases where it is not stated in the plaint that he is sued as the manager of the family and the question whether the suit was brought against the manager in his individual capacity or as representing the whole family, has primarily to be gathered from the nature of the transactions involved in the suit and the averments in the plaint. In S. A. Venkatagiriah v. S. A. Ramarathna Setty, (1968) 1 Mys. L. J. 384. In S. A. Venkatagiriah v. S. A. Ramarathna Setty, (1968) 1 Mys. L. J. 384. it was held that where the purpose of the transaction is one which bound the family, although the manager did not describe himself as the manager in executing the document recording that transaction, he is presumed to have entered into the transaction as such manager. In Amrit Sagar Gupta v. Sudesh Behari lal, AIR. . 1970 SC. 5 it is laid down that it is not necessary, in order that a decree against the manager may operate as resjudicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager and that it is sufficient if the circumstances of the case show that he is the manager of the family and the property involved in the; suit is the family property. In Lakshmindrathirtha Swamiar v. K. Raghavendra rao, ILR. 43 Mad. 795, it has been held tha,t in a, suit to recover a simple money debt incurred by the sanyasi head of a Mutt for the necessary purposes of the mutt the properties of the Mutt can be made liable. The case of a sanyasi head of the Mutt was distinguished from the cases of an executor or an administrator or lay trustees of a charitable or religious institution, since in the latter cases the presumption should be that when he incurred a debt without charging the trust properties, the creditor lent the money on such personal credit and could look to that credit alone and to the principle of subrogation for recovery of his loan. But a distinction has been suggested in Shankar Bharti Swami v. Venkappa Nair, ILR. 9 Bom. 422, which has been quoted by the learned Judges and the following observations in the Bomay case were referred to : "it is sufficient for the present case to say that those decisions axe, in our opinion, inapplicable to the case of the Swami of a Mutt, who presumably has no private property, and must, therefore, be presumed to be pledging the credit of the Mutt when he borrows money for the purposes of the Mutt. That being so, the bond was binding on the Devasthan if the loan was for the purpose of the Mutt or the plaintiff had bona fide reason to suppose it was intended for such purposes. " it was observed by Sadasiva Ayyar, J. that a Hindu sanyasi has no personal credit whatever of a monetary or proprietary character and that it is a contradiction in terms to state that any loan was made to a sanyasi on his personal credit. Spencer, J. observed that in cases where the head of a Mutt incurred debts for purposes necessary for the maintenance of the institution, by pledging the credit of the Mutt, there is no presumption that the head of the Mutt intended to make himself personally liable. Mr. Krishnamurthy relying on the observations made by Sadasiva Ayyar, j. in this decision, contends that there is a presumption when the head of a Mutt contracts a debt that in pledging only the credit of the Mutt and not his personal credit, since he hs none. The decisions in ILR. 9 bom. 422 and ILR. 43 Mad. 795, have been considered by B. K. Mukherjea in his Tagore Law Lectures, published in book form " Hindu Law of religious and Charitable Trusts'", 3rd Edn, at page 291. This is what he says :"in Shankar Bharati v. Venkappa (ILR 9 Bom. 422) it was held that the principle of these decisions was inapplicable to the case of the Swami of a Mutt who personally has no private property and must, therefore, be presumed to be pledging the credit of the Mutt when he borrowed money for purposes of the Mutt. This reasoning was approved of by Sadasiva Ayyar, J. in Lakshmindra Tirtha v. Raghavendra (ILR 43 Mad. 795 ). Spencer, J. who was the other Judge of the bench based his decision on the larger ground that in case the head of a Mutt contracts debts for purposes of the institution, the presumption is that he does not intend to make himself personally liable. It seems that Sadasiva Ayyar, J. went a bit too far when 'he said that a Hindu sanyasi has no personal credit whatever of a monetary or proprietary character and that it is a contradiction in terms to state that any loan was made to a sanyasi on his personal credit. It seems that Sadasiva Ayyar, J. went a bit too far when 'he said that a Hindu sanyasi has no personal credit whatever of a monetary or proprietary character and that it is a contradiction in terms to state that any loan was made to a sanyasi on his personal credit. As I have already said that there is nothing unusual in a Hindu sanyasi earning money or property for his own benefit. In many cases the pronarnic which he receives from the devotees and disciples become his personal properties; and examples are not rare when he carries on money- lending or other business on his own account. I think, however, that the view where a loan contracted by a Mohunt is supported by legal necessity a decree can be made binding on the trust property, may be justified on another principle. Assuming that in a simple contract debt the Mohunt is to be deemed to pledge only his personal credit, but. if the money borrowed was necessary for purposes of the Mutt he would have the right to have this money paid out of the Mutt pro- perty. The creditor in such circumstances can invoke the equitable doctrine of subrogation and claim to be placed in the position of the mohunt for enforcement of the letter's right against the Mutt property. "he further states :"if the creditor succeeds in establishing that there was a justify- ing necessity for the loan, he is entitled, aa said above, to have a decree against the Mohunt as representing the Mutt and the decree could be executed like an ordinary money decree by attachment and sale of any of the endowed properties. When the plaintiff fails to prove legal necessity, the decree would be against the Mohunt personally which means that the Mohunt's personal property, if any could be proceeded against in execution. " ( 6 ) THIS statement appears to me to state the law correctly. It cannot be presumed that whenever a debt is contracted by the head of a Mutt, he is pledging only the credit of the Mutt. In the present case there is also the finding of the lower Court that the first defendant was possessed of his own individual properties. The plaintiff, therefore, has to establish that the debts, on which he sued in the small cause suit were contracted for purposes binding on the Mutt. In the present case there is also the finding of the lower Court that the first defendant was possessed of his own individual properties. The plaintiff, therefore, has to establish that the debts, on which he sued in the small cause suit were contracted for purposes binding on the Mutt. If he establishes the same then the first defendant will be deemed to have been sued in his capacity aa the head of the Mutt and the decree obtained in the small cause suit will be binding on the properties of the Mutt. If he fails to do so, the, decree obtained by the plaintiff will not bind the properties of the Mutt and he can proceed only against the first defendant. ( 7 ) THE question, therefore, to be considered is whether the debts upon which the plaintiff brought the suit were contracted for purposes binding on the Mutt. Ex. P2 is the certified copy of the judgment in Small cause Suit No. 1115/of 1944-45. In Nildan Sahu v. Chaturbhuj, AIR. 1926 PC. 112 relied on by Mr. Puranik, the learned high Court Government Pleader, it has been held that in order to determine whether a mortgage by a. Shebait of Mutt property is binding on the mutt, it is the immediate and not the remote cause of the borrowing which has to be considered. By the time the suit in the trial Court reached the stage of evidence, the plaintiff was dead. PW. 2 is the son-in-law of the plaintiff. He has stated in his evidence that he is aware of the Small cause Suit filed by the plaintiff and it has been decreed. He speaks to the; subsequent proceedings in execution of. that decree. ( 8 ) THIS is all the oral evidence in support of the plaintiff's case. It is to be noticed that in the plaint there is no plea that the debts which formed the basis. of the Small Cause Suit were debts incurred for purposes binding on the Mutt. It is the plaintiff's case that Rs. 100 referred to in Ext. P7 (b) was incurred to meet the expenses of registration of the mortgage deed dt. 26-9-43. The mortgage deed is not produced. It is also the plaintiff's case that the other sum of Rs. of the Small Cause Suit were debts incurred for purposes binding on the Mutt. It is the plaintiff's case that Rs. 100 referred to in Ext. P7 (b) was incurred to meet the expenses of registration of the mortgage deed dt. 26-9-43. The mortgage deed is not produced. It is also the plaintiff's case that the other sum of Rs. 200 which formed the basis of the Small cause Suit was borrowed by the first defendant for the purpose of paying an earlier debt to Sadasivamurthy referred to in Ext. P7 (c ). It is further contended that the mortgage deed refers to the earlier debt duetto him and that part of the mortgage debt was incurred for the purpose of paying to the said Sadasivamurthy. It is further contended that the suit filed by the plaintiff on the mortgage deed dt. 26-9-43 was decided in favour oi the plaintiff and that it was held ultimately by this Court in the Regular appeal arising out of the said suit that the mortgage debt is binding on the Mutt. Neither the pleadings in that case nor the judgment of this court relied on by the plaintiff have been produced as evidence in the case. The contention of the plaintiff that these two amounts of Rs. 100 and rs. 200 which formed the basis of the Small Cause Suit represent debts which are binding on the Mutt, is based on the allegation that the mortgage debt under the document dt. 26-9-43 has been held to be one incurred for the necessities of the Mutt and therefore binding on the Mutt and its property. But, as already stated, neither the pleadings in the suit based on the said mortgage deed nor the judgment in that suit has been produced in the case. The statement of PW. 5 to the effect that all monies borrowed by the first defendant from the plaintiff were utilised for conversion of the dry lands of the Mutt into wet lands is too vague. PW. 5 was working as a servant under 1st defendant and the transactions took place about 30 years prior to the date of his deposition. It is unlikely that PW. 5 would, know the details about the money transactions of his master, the first defendant. PW. 5 was working as a servant under 1st defendant and the transactions took place about 30 years prior to the date of his deposition. It is unlikely that PW. 5 would, know the details about the money transactions of his master, the first defendant. Apart from this evidence, there is no other evidence to support the case of the plaintiff that the sums of Rs. 100 and Rs. 200 which were borrowed by the first defendant from the plaintiff were borrowed for purposes binding on the Mutt. Therefore, it has to be held that the plaintiff has failed to establish that the debts incurred by the first defendant were for a purpose binding on the Mutt. Consequently, the decree obtained by the plaintiff in Ext. P2 is not binding on the properties of the Mutt. ( 9 ) SINCE the plaintiff has to fail on the merits of the case, it is unnecessary to consider whether the suit is within the period of limitation. This appeal is therefore dismissed with costs of Respondent 2. --- *** --- .