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A.L.A.R. Arunachellam Chettiar v. Velappa Thambiran
Structured Summary of the Provided Legal Opinion
Factual and Procedural Background
The plaintiffs, suing under Section 30 of the old Code of Civil Procedure (CPC) on behalf of themselves and all disciples of the Dharmapuram Mutt, filed a suit in the Court of the Subordinate Judge of Tinnevelly. They sought a declaration that a decree obtained by defendants 3 to 6 against defendants 1 and 2 in Original Suit No. 100 of 1902 (originally in the Subordinate Judge of Kumbakonam, later transferred to the Additional Subordinate Judge of Kumbakonam and then to the Additional Subordinate Judge of Tanjore) on a mortgage executed by defendant 1 (who was then Pandarasannadhi of the mutt) was not binding on the mutt and its properties. The plaintiffs also sought an injunction restraining defendants 3 to 6 from executing that decree and restraining defendants 1 and 2 from alienating mutt properties in satisfaction of it.
The Subordinate Judge granted relief in favour of the plaintiffs, declaring that the suit properties were not liable under the decree in the earlier suit, restrained execution of that decree against the mutt properties, and restrained defendant 2 from alienating those properties in satisfaction of it. The appeal in this matter was heard and ultimately dismissed by the appellate Court; an additional appeal against Order No. 177 of 1910 was likewise dismissed.
Legal Issues Presented
- Whether the Tinnevelly Court had jurisdiction to make a declaration challenging a decree of the Tanjore (original) Court.
- Whether the present plaintiffs (disciples of the mutt) had the right to sue on behalf of themselves and all disciples without prior sanction under Section 92 of the CPC.
- Whether the compromise decree (razinama) obtained in Original Suit No. 100 of 1902 — entered into between defendants 3–6 (plaintiffs in that suit) and defendants 1–2 (defendants in that suit) — was binding on the mutt properties, i.e., whether the compromise was lawful and bona fide or constituted a breach of trust.
Arguments of the Parties
Plaintiffs' Arguments
- The plaintiffs sought a declaration that the decree obtained against defendants 1 and 2 in Original Suit No. 100 of 1902 was not binding on the mutt and its properties and asked for an injunction to prevent execution or alienation in satisfaction of that decree.
- They pleaded that the razinama (compromise) entered into in the earlier suit had been obtained fraudulently by defendants 1 and 2.
- Procedurally, they insisted on their right to call defendants 1 and 2 as witnesses at trial (including issuing summonses), exercising what they regarded as their legal right to examine them.
Defendants' Arguments
- Defendants 3 to 6 had sued on the mortgage decree in the Tanjore Court and later transferred the decree for execution to the Tinnevelly Court — implying the Tinnevelly Court had jurisdiction for execution.
- Defendant 2 contended that the plaintiffs, by summoning him as a witness and opposing examination on commission, coerced or practically compelled him to enter into the compromise (razinama) to avoid appearing as a witness; he argued that coercion induced the compromise.
- Defendants argued that the mortgage debt was contracted for purposes binding on the mutt (or that the father of defendants 3–6 had satisfied himself by inquiries that the advance was necessary), which if proved would support validity of the mortgage and the resultant decree.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Banke Behari Lal v. Pokhe Ram | The opinion relies on this authority in support of the proposition that the Subordinate Judge had jurisdiction to make a declaration challenging the decree despite its origin in another court. | The Court followed this authority in holding that the Tinnevelly Court had jurisdiction under the circumstances (part of the mortgaged property lay in Kumbakonam jurisdiction and execution had been transferred to Tinnevelly). |
| Umrao Singh v. Hardeo | The opinion states this decision does not establish an absolute rule that a decree can only be impeached in the Court which passed it. | The Court relied on it to reject a rigid rule of exclusive jurisdiction of the original court to entertain challenges to a decree; it supported the view that a decree passed by consent may be questioned elsewhere under appropriate circumstances. |
| Earl of Bandon v. Becher | The provided opinion cites this case in the same context as Umrao Singh to show there is no absolute rule limiting where a decree can be impeached. | The Court cited it as supporting authority for permitting jurisdiction outside the court which passed the decree in certain circumstances. |
| Budree Das Mukim v. Chooni Lal Johurry | Authority for the proposition that persons in the position of the plaintiffs (disciples claiming an interest in the mutt) may sue without sanction under Section 92 of the CPC. | The Court relied on this authority in upholding the Subordinate Judge's finding that plaintiffs had a special interest allowing them to sue on their own behalf. |
| Strinivasa Ayyangar v. Strinivasa Swami | Also cited as authority supporting the plaintiffs' right to sue without prior sanction under Section 92. | The Court treated it as one of the precedents justifying the plaintiffs' locus to bring the suit. |
| Subbarayadu v. Asan Ali Sheriff | Cited among rulings supportive of the disciples' right to sue. | The Court included it among authorities relied upon by the Subordinate Judge to validate plaintiffs' standing. |
| Subramania Aiyer v. Nagarathna Naicker | Cited similarly in support of plaintiffs' right to sue. | Used as one of the precedents that established the plaintiffs' special interest and right to maintain the suit. |
| Vidyapurna Tirthaswami v. Vidyanidhi Tirthaswami | Considered the position and powers of a Pandarasannadhi, comparing certain rights of enjoyment to an English ecclesiastical corporation sole. | The Court relied on it in considering the nature and limits of the Pandarasannadhi's powers, particularly regarding alienation and compromise. |
| Kailasam Pillai v. Nataraja Thambiran | Also addresses the position and powers of a Pandarasannadhi (head of a mutt). | Used by the Court to frame the question of the incumbent's powers to compromise suits affecting mutt property. |
| Srimath Daiva Sikhamani Pandara Sannadhi alias Nataraja Desicar v. Noor Mahomed Rowthen | Compared the Pandarasannadhi's power of alienation to that of a temple trustee (as noted in the opinion). | The Court cited it to support the analogy between Pandarasannadhi and a trustee when assessing capacity to alienate or compromise. |
| Srimath Deivasi Kamani Pandara Sannadhi v. E.K Karuthe Ravuthan | Also used to liken the Pandarasannadhi to a temple trustee in relation to alienation powers. | Supported the Court's approach that the Pandarasannadhi's compromise powers should be considered in light of trustee principles. |
| Prosunno Kumari Debya v. Golab Chand Baboo | Their Lordships laid down that a decree obtained after contest against the trustee for the time being is binding on his successor and a suit to set it aside will be dismissed in the absence of fraud and collusion. | The Court observed this as not disproving recognition of lawful compromises; it distinguished contest decrees from compromise decrees and used the case to limit the appellant's reliance upon it. |
| Muthusamier v. Methanithi Swamiyar | Compared the position of a Pandarasannadhi as regards alienations to that of a Hindu widow (as noted in the opinion). | The Court cited the comparison but cautioned against over-extending analogies; it used this material to inform but not fully determine the issue of compromise power. |
| Forshaw v. Higginson | Discussed compromises by trustees without leave of Court; observed trustees are generally advised to obtain court directions and that the court refused to hold a trustee liable where the trustee acted under good professional advice. | The Court used this to explain trustee practice regarding compromises and the risk trustees face if they cannot later show bona fides; it informed the standards applied to the Pandarasannadhi's compromise. |
| Wiles v. Gresham | Held that a trustee who accepted a composition must show that no more could have been obtained if he is to escape liability for the balance. | The Court cited it to illustrate a stricter view of trustees' duties when accepting compositions out of Court. |
| Brooke v. Lord Mostyn | Turner, L.J., indicated the Court's jurisdiction over trustees as the foundation for its power to compromise rights and claims of infants and persons under disability. | Used to support the proposition that the court's supervisory power over trustees underpins approval of compromises affecting beneficiaries. |
| Leeming v. Lady Murray | Jessel, M.R., seemed to consider that the power to compromise might be incident to the power to institute and conduct suits. | The Court cited this as one view in the authorities concerning trustees' powers to compromise. |
| Sankaralinga Nadan v. Bajeswara Dorai | The Judicial Committee did not lay down that a trustee had no power to compromise; they approved a judgment refusing to recognize a compromise as breach of trust in the circumstances of that case. | The Court cited it to show that trustees may have some power to compromise, but such compromises may be set aside if constituting a breach of trust. |
| Rajah M. Bhaskara Sethupathi and Irulappa Nadan v. Narayanasamy Gurukkal | The earlier judgment refused to recognize a compromise on the ground that it constituted a breach of trust. | The Court referred to this as an instance where a compromise by a trustee was not recognized because it amounted to breach of trust, supporting the proposition that compromises are not necessarily lawful. |
| Sudindra v. Budan | Held that a decree against the de facto head of a mutt could not be resisted in execution on the ground that the debt sued on was not incurred for the benefit of the mutt, and such a decree must be set aside, if at all, by a separate suit. | The Court used it to show limits on resisting execution and to illustrate procedural posture where separate suits are required to challenge such decrees. |
| Manikka Vasaka Desikar alias Gnana Sambanda Pandara Sannadhi v. Balagopalakrishna Chetty | Mentioned in relation to a compromise decree obtained against the present defendant 1; incidentally observed it might be unreasonable to force mutt property into litigation when compromise is in the mutt's interest. | The Court cited it noting the incidental observation but did not treat it as dispositive of the present compromise's validity. |
| Subbammal v. Avudaiyammal | In a suit to set aside a mortgage and sale passed without contest against a widow, the suit was dismissed where the debt was really due by the last male owner and the widow, as representing the estate, was not bound to raise a defence when she was satisfied the debt was due. | The Court cited it when discussing analogies with decrees against widows and when considering whether a consent decree is in a better position than a contract. |
| Bhogaraju Venkatarama Jogiraju v. Adapalli Seshayyah | Laid down that a consent decree against a widow stands in no better position than a contract made by the widow, but recognized such compromises when properly entered into. | The Court used it to show that consent decrees may be treated like contracts and are not necessarily beyond scrutiny; it supported the view that compromise decrees are recognized only when properly and lawfully made. |
| Imrit Kanwar v. Boop Narain Singh | The opinion notes that some Courts have interpreted this decision as holding that a decree against a widow is binding on reversioners only when the suit was decided after contest and not on a compromise. | The Court referenced it in discussing divergence of views on decrees obtained by compromise against persons in fiduciary positions. |
| Rajlakshmi Dassee v. Katyayani Dasee | Collects cases on the point of decrees against widows and their binding effect; some courts used it to support the narrower view about compromises. | The Court cited it as an example where courts collected authorities and held that decrees against widows obtained by compromise may not bind successors. |
| Hunoomanpersaud Panday v. Mt. Babooee Mmrai Koonweree | Referred to for the standard of inquiry a lender should make before advancing money to ascertain necessity (as referenced in the opinion). | The Court considered whether the father of defendants 3–6 satisfied himself by inquiries of the necessity for the loan, and found the inquiries insufficient to establish that the advance was for purposes binding on the mutt. |
Court's Reasoning and Analysis
The appellate Court proceeded in a structured manner addressing first preliminary objections and then the substantial question:
- Jurisdiction: The Court rejected the objection that the Tinnevelly Court lacked jurisdiction to make a declaration concerning a decree of the Tanjore Court. It noted that part of the mortgaged properties fell within Kumbakonam jurisdiction and the remainder in Tinnevelly, and that the decree had been transferred for execution to the Tinnevelly Court. The Court followed Banke Behari Lal v. Pokhe Ram and observed that Umrao Singh v. Hardeo does not establish an absolute rule confining impeachment of a decree exclusively to the court which passed it. The Court therefore considered the Subordinate Judge right to exercise jurisdiction in the circumstances.
- Plaintiffs' right to sue: The Court upheld the Subordinate Judge's finding that the plaintiffs (disciples) had a special interest in preservation and maintenance of the mutt and its properties, entitling them to sue on their own behalf without obtaining sanction under Section 92 of the CPC. The Court relied on authorities cited by the Subordinate Judge to support this conclusion.
- Nature and limits of the Pandarasannadhi's powers: The Court examined authorities concerning the position and powers of a Pandarasannadhi (head of a mutt). It accepted that analogies to corporate ecclesiastical institutions, temple trustees, managers of infants, or widows can be informative but warned against pressing analogies too far. The Court concluded that the Pandarasannadhi's powers to compromise suits affecting mutt properties cannot be larger than those of a trustee and proceeded to consider trustee principles as guidance.
- Principles applicable to trustees and compromises: The Court surveyed English and Indian authorities on trustees' powers to compromise, noting statutory powers where applicable (including reference to Section 43 of the Trusts Act for post-Act compromises, with the caveat that it does not apply to religious or charitable trusts). It cited Forshaw v. Higginson, Wiles v. Gresham, Brooke v. Lord Mostyn, and other authorities to explain that compromises by trustees without court sanction are examined with scrutiny — trustees are expected to show bona fides and, in some decisions, to demonstrate that no better terms could have been obtained.
- Burden of proof regarding compromises: The Court stated that where a decree has been passed not after contest but upon compromise, the onus is on defendants to show that the compromise was lawful and bona fide. The Court emphasized that compromises by trustees or fiduciaries are not necessarily void, but must be justified by the party asserting their validity.
- Factual findings applied to law: The Court recited key facts: defendant 1 executed a mortgage in 1899 for Rs. 40,000 in favour of the father of defendants 3–6; defendants 3–6 sued in 1902; defendant 1 executed a deed of relinquishment while suit pending; plaintiffs summoned defendants 1 and 2 to give evidence; both applied for examination on commission; the Subordinate Judge refused the commission requests and ordered attendance; after an unsuccessful transfer and stay application, on 31st October a razinama (compromise) was entered and a mortgage decree for Rs. 52,000 obtained.
- Assessment of coercion, motive and breach of duty: The Court reviewed competing explanations. Plaintiffs alleged the razinama was fraudulent; defendant 2 alleged coercion by plaintiffs through the summons process. The appellate Court held plaintiffs had not exercised coercion or undue influence by insisting on their legal right to examine defendant 2. However, the Court agreed with the Subordinate Judge's finding — based on lack of satisfactory explanation and the evidence — that defendant 2 was motivated mainly by a desire to avoid attendance and examination as a witness. The Court held that a compromise entered into under such an indirect motive, by a person in defendant 2's position, amounted to a breach of duty and could not be regarded as lawful or bona fide.
- Sufficiency of proof that the debt bound the mutt: The Court accepted the Subordinate Judge's careful examination that the mortgage debt was contracted for purposes not binding on the mutt. It addressed the defendants' contention that the father of defendants 3–6 had made necessary inquiries (citing Hunoomanpersaud Panday) and found that while some inquiries were made about debts and pledges, there was no adequate inquiry directed to whether the debts were binding on the mutt. Account inspections either failed to show binding purposes or showed purposes not binding on the mutt (e.g., purchase of rings). The defendants had not pleaded nor proved diligence of inquiry as a substantive defence. Thus the evidence failed to support that the mortgage debt was binding on the mutt.
- Distinction from analogies (widow/reversioner): The Court considered an argument equating the situation to decrees binding on a life-interest (as in decrees against widows) but found the position not analogous. It emphasized a Pandarasannadhi's moral (if not strictly legal) obligation to apply mutt surplus to religious or philanthropic purposes and concluded it would be improper to compel the Pandarasannadhi to apply mutt funds to satisfy debts found not to be binding on the mutt.
Holding and Implications
Holding: Both appeals are dismissed.
Direct consequences for the parties:
- The appellate Court upheld the Subordinate Judge's decree that the suit properties are not liable under the decree in Original Suit No. 100 of 1902 (the razinama decree), and it affirmed the injunction restraining execution of that decree against the mutt properties.
- The Court sustained the Subordinate Judge's finding that the compromise (razinama) was not a lawful or bona fide compromise as to defendant 2 and that the mortgage debt had been proved to have been contracted for purposes not binding on the mutt.
- The appeals were dismissed with costs; the separate appeal against Order No. 177 of 1910 was also dismissed.
Broader implications: The opinion does not state that it establishes new, general precedent beyond applying and synthesizing existing authorities. The Court reiterated that compromises by fiduciaries (such as a Pandarasannadhi) are not necessarily void but are subject to close scrutiny, and that the onus lies on those asserting their validity to show they were lawful and bona fide.
End of summary. This summary is confined to information contained in the provided opinion and does not add or infer facts beyond that text.
JUDGMENT
1. This is a suit brought by the plaintiffs, suing under Section 30 of the old CPC, on behalf of themselves and all the disciples of the Dharmapuram Mutt, in the Court of the Subordinate Judge of Tinnevelly for a declaration that the decree obtained by defendants 3 to 6 against defendants 1 and 2 in Original Suit No. 100 of 1902 on the file of the Court of the Subordinate Judge of Kumbakonam subsequently transferred to the Court of the Additional Subordinate Judge of Kumbakonam (subsequently transferred to the Court of the Additional Subordinate Judge of Tanjore) on a mortgage executed by defendant 1, the then Pandarasannadhi of the mutt, is not binding on the mutt, and its properties, and for an injunction restraining defendants 3 to 6 from executing the decree and defendants 1 and 2 from alienating the mutt properties in satisfaction of it. The Subordinate Judge passed a decree, declaring that the suit properties are not liable under the decree in the said suit, restraining the plaintiffs from executing the said decree against those and other property of the mutt and defendant 2 from alienating the said properties in satisfaction thereof.
2. Two preliminary points have been argued before us, that the Tinnevelly Court had no jurisdiction to make a declaration about a decree of the Tanjore Court and that the present plaintiffs had no right to sue. As regards the first point a very small part of the mortgaged properties is situated within the jurisdiction of the Kumbakonam Court and the rest in Tinnevelly, and though the present defendants, as they were entitled to do, sued on the mortgage decree in the Tanjore Court they subsequently had the mortgage decree transferred for execution to the Tinnevelly Court and it was while, execution was pending in that Court, that the plaintiffs instituted the present suit. In this state of things we think the Subordinate Judge was right in holding that the Court had jurisdiction, following Banke Behari Lal v. Pokhe Ram(1). The most recent decision of the Allahabad High Court in Umrao Singh v. Hardeo(2) does not lay down an absolute rule that no decree can be in any way impeached save in the Court in which it was passed. A decree passed by consent and without contest against defendants 1 and 2 whereby the mutt properties are made liable, stands as will be seen later, in no better position than; a settlement effected out of Court, and we think there is no sufficient reason why it should be questioned only in the Court that passed it: see also Earl of Bandon v. Becher(3). We think this objection fails. As regards the second point, the sub-ordinate Judge has found that the plaintiffs and other disciples of the mutt have a special interest in the preservation and the maintenanoe of the mutt and its properties which entitles them to sue on their own behalf and without obtaining sanction under Section 92 of the CPC. The decisions relied on by the Subordinate Judge, Budree Das Mukim v. Chooni Lal Johurry(4) and Strinivasa Ayyangar v. Strinivasa Swami(5), and the rulings in S.A No. 20 of 1898, Subbarayadu v. Asan Ali Sheriff(6) and Subramania Aiyer v. Nagarathna Naicker(7), are authorities for so holding.
3. The substantial question in the case is whether the decree of the Tanjore Court passed on a compromise entered into between the present defendants 3 to 6 as plaintiffs in that suit and defendants 1 and 2 in that suit and this, was or was act binding on the mutt properties. The position and powers of a Pandarasannadhi or head of a mutt in Southern India have been considered in Vidyapurna Tirthaswami v. Vidyanidhi Tirthaswami(8), and Kailasam Pillai v. Nataraja Thambiran(9). In the former case he has been compared with reference to his rights of enjoyment to an English ecclesiastical corporation sole. With reference to his powers of alienation he has been compared in Srimath Daiva Sikhamani Pandara Sannadhi alias Nataraja Desicar v. Noor Mahomed Rowthen(10) and Srimath Deivasi Kamani Pandara Sannadhi v. E.K Karuthe Ravuthan(11) to a temple trustee, whose position again has been held by the Privy Council to be analogous to that of the manager of an infant heir in Prosunno Kumari Debya v. Golab Chand Baboo(12). More recently in Muthusamier v. Methanithi Swamiyar(13), the position of a Pandarasannadhi as regards alienations has been compared to that of a Hindu widow; but we agree with the observation of Sadasiva Aiyar, J., in the last case that it is dangerous to press these analogies too far, in the case of the incumbent of a religious office whose rights and duties are merely governed by usages. As regards the present question, having regard to the position of a Pandarasannadhi as explained in the cases already referred to, we think it may safely be assumed that: his powers to compromise suits affecting mutt properties cannot be larger than those of a trustee, and that it will be best to begin by considering the extent of such powers. Trustees now possess certain statutory powers of compromise in England, and also in India under Section 43 of the Trusts Act, in the case of compromises effected after the passing of the Act, which however does not apply to religious or charitable trusts. In Forshaw v. Higginson(14) Turner, L.J, observed that cases of compromises by trustees without leave of the Court rarely came before the Court, no doubt because trustees were generally advised to apply to the Court for directions before making such compromises, inasmuch as if they made them of their own authority, they were liable to have them called in question after they had lost the evidence showing that they had acted in the bona fide exercise of their discretion. In that case the Court refused to hold a trustee liable to the estate for a payment made by him pursuant to a compromise effected out of Court under good professional advice. On the other hand it was held in Wiles v. Gresham(15) that a trustee who accepted a composition must show that no more could have been obtained if he was to escape being held liable for the balance. As regards compromise of suits, trustees have felt it even more necessary to obtain the sanction which the Court has power to grant in the exercise of its jurisdiction over trustees, which is said by Turner, L.J, in Brooke v. Lord Mostyn(16) to be also the foundation of its power to compromise the rights and claims of infants and persons under disability. The cases as to charitable trusts collected in Tudor at p. 378 (4th Edn.) are all cases in which the compromise was confirmed by the Court. In the case of infants, both in England and in India, under the Code of Civil Procedure, compromises of suits entered into without the leave of the Court are invalid, but there is no similar provision in the Code as to trustees. In Leeming v. Lady Murray(17) Jessel, M.R, seams to have been of opinion that the power to compromise was incident to the power to institute and conduct suits and in Sankaralinga Nadan v. Bajeswara Dorai(18), which was a case of compromise by a trustee of a temple pending an appeal by the other side, their Lordships of the Judicial Committee did not lay down that the trustee had no power to compromise a suit, but approved of the judgment of this Court in Rajah M. Bhaskara Sethupathi and Irulappa Nadan v. Narayanasamy Gurukkal(19), which refused to recognize the compromise in question on the ground that it was not a lawful compromise but constituted a breach of trust. The better view appears to be that compromises of suits entered into fay trustees of charitable endowments are not necessarily void.
4. As regard the cases relied on by the appellant in support of the compromise in Prosunno Kumari Debya v. Golab Chand Baboo their Lordships merely lay down that a decree obtained after contest against the trustee, for the time being is binding on his saccessor and that a suit to set it aside will be dismissed in the absence of fraud and collusion. In Sudindra v. Budan(20) all that the Court decided was that a decree against the de facto head of a mutt could not be resisted in execution on the ground that the debt sued on was not incurred for the benefit of a mutt; and that it must be set aside, if at all by a separate suit. So too in Manikka Vasaka Desikar alias Gnana Sambanda Pandara Sannadhi v. Balagopalakrishna Chetty(21) as regards a compromise decree obtained against the present defendant 1. Incidentally however it was observed in that case that it would be unreasonable to hold that a Pandarasannadhi is bound to waste mutt property in litigation when it is in the interest of the mutt to enter into compromise. In Subbammal v. Avudaiyammal(22) a suit to set aside a mortgage and sale of certain lands in satisfaction of a decree passed without contest in suit against a widow on an alleged debt of her husband was dismissed, as it was found that the debt was really due by the last male owner; and it was observed that the widow as representing the estate was not bound to raise any defence when she was satisfied that the debt was really due. A still later decision of this Court, Bhogaraju Venkatarama Jogiraju v. Adapalli Seshayyah(23), relied on for the respondent, lays-down that such a consent decree against the widow stands in no better position than a contract made by the widow, but this is not inconsistent with the recognition of such compromises when properly entered into. Some of the other Courts have gone further and have interpreted the decision of their Lordships in Imrit Kanwar v. Boop Narain Singh(24), as laying down absolutely that a decree against a widow is only binding on the reversionere when the suit was decided after contest and not on a compromise: see the judgment of Mookerjee and Carnduff, JJ., in Rajlakshmi Dassee v. Katyayani Dasee(25) where the cases are collected. It is unnecessary to pursue this question, because for the purposes of the present: case it is sufficient to say that, in a suit to declare a decree against a Pandarasannadhi, not binding on the mutt properties, once it appears that the decree was passed, not after contest but on compromise, the onus is on the defendants to show that the compromise was a lawful one entered into bona fide; and that; in the present case, apart from any question of onus, it is proved that the compromise was not of that character.
5. In 1899 defendant 1, who was then Pandarasannadhi executed a mortgage for Rs. 40,000 in favour of the father of defendants 3 to 6, Ex. AA, with the alleged object of raising money for the erection of a building, the discharge of debts left by his predecessor, the payment of kist and expense of the mutt. In 1902 defendants 3 to 6 sued defendant 1 on the mortgage in the Court of the Subordinate Judge of Kumbakonam and, while the suit was pending, defendant 1 executed a deed of relinquishment appointing defendants Pandarasannadhi in his place. Defendant 2 was made a party defendant, and pleaded that the money had not been borrowed by defendant 1 for purposes binding on the mutt. Issues, Ex. DD, were settled. On 7th February 1903, and shortly before the case came on for hearing, the plaintiffs took out summonses calling on defendants 1 and 2 to attend and give evidence and produce documents at the trial.
6. It is well known that persons in the position of a Pandarasannadhi have a strong objection to appearing in Court as witnesses which they regard as derogatory to their dignity, and both accordingly applied to be examined on commission. It had recently been decided in this Court that they are not entitled to exemption under Section 133 of the CPC, in the absence of a special notification by Government, and accordingly the Subordinate Judge rejected the petitions and ordered them to attend and give evidence, defendant 1 in open Court, and defendant 2 in chambers. These orders were passed on 1st and 11th August 1904; and after an unsuccessful application for transfer and stay had been made to the District Judge and dismissed by him on 19th September 1904, the plaintiffs and defendants 1 and 2 on 31st October following, put in a razinama petition under which the plaintiff obtained a mortgage decree for Rs. 52,000.
7. The plaintiffs in this suit plead that the razinama was entered into fraudulently by defendants 1 and 2 in that suit and this, while defendant 2 pleads in effect that the plaintiffs, in order to prevent him for defending the suit, unnecessarily summoned him as a witness and opposed his examination on commission and practically coerced him to enter into the compromise. While we do not consider that the plaintiffs can be said to have exercised any coercion or undue influence on defendant 2 in insisting, however ill-advisedly, on their legal right to examine him as witness, we think the Subordinate Judge was well warranted, in the absence of any satisfactory explanation as to why defendant 2 abandoned his defence, and on the other evidence before him, in coming to the conclusion that defendant 2 was actuated mainly by a desire to escape the necessity of having to attend and be examined as a witness. In our opinion, a compromise entered into under the influence of an indirect motive of this kind by a person in the position of defendant 2 amounted to a breach of his duty and can not be regarded as lawful or bona fide.
8. The evidence in the present case, which was also available in that case, has satisfied the Subordinate Judge that defendant 2 was in a position successfully to maintain the defence he had pleaded if the case had been fought out, and that it was his duty to contest it. No serious attempt has been made to question the finding arrived at by the Subordinate Judge on a careful examination of the evidence that the mortgage debt sued on has been proved by the plaintiffs to have been contracted for purposes not binding on the mutt—except on the ground that before advancing the money the father of defendants 3 to 6 satisfied himself by inquiries, of the nature indicated in Hunoomanpersaud Panday v. Mt. Babooee Mmrai Koonweree(26), that the advance was necessary to discharge debts-binding on the mutt. It is no doubt proved that the father of defendants 3 to 6 ascertained by inquiry that defendant 1 had contracted numerous debts on pledges of jewels and otherwise; but, as pointed out by the Subordinate Judge, there seems to have been no inquiry how far the debts so contracted were binding on the mutt. As regards the accounts which are said to have been inspected, they either fail to show the purpose for which the debt was incurred or show purposes not binding on the mutt such as the purchase of rings. The defendants did not plead that the mortgage debt sued on in the previous suit was binding on the mutt because they had satisfied themselves by due inquiries as to the necessity for the loan, nor was any such issue raised; and apart from this objection, the evidence on record, as the Subordinate Judge has shown, fails altogether to support such a plea.
9. It is then said that, even if this be so, the decree should be treated as an alienation binding on the life-interest of defendant 2 as in the case of a decree passed in similar circumstances against a widow. The position however is not analogous. A Pandarasannadhi, though he has been held not to be accountable for his expenditure of the income of the mutt properties, is yet under a moral if not a legal obligation to apply the surplus for purposes of a religious or philanthropic nature, and it would not, we think, be right to compel him to apply it in satisfaction of debts which have been found not to be binding on the mutt.
10. The appeal is dismissed with costs.
11. Appeal against Order No. 177 of 1910. This appeal is also dismissed.
S.N/R.K
12. Appeals dismissed.
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