Thakurji Ramji Lachhmanji And Jankiji Of Asthal Pokhrauni v. Mathura Prasad Missir

Chatterji, J.:— This appeal arises out of a suit brought by the mahanth of an Asthal called Pokhrauni Asthal, on behalf of the deities, Sri Thakurji Ramji, Lachhmanji and Jankiji installed therein, for recovery of possession of the disputed properties on a declaration that these are debutter properties appertaining to the Asthal, that the auction sale held on 31st March 1913, at which these properties were purchased by the defendants' predecessors is wholly illegal and inoperative, and that the defendants have got no interest therein. The previous mahanth of the Asthal, namely Mahanth Damodar Das, executed a mortgage on 3rd January 1902 for Rs. 5000 in favour of the defendants' predecessors Bishun Prasad Missir and Ambika Prasad Missir in respect of the disputed properties. In 1908, the mortgagees brought a suit against Mahanth Damodar Das to enforce the mortgage and obtained a mortgage decree after contest on 21st March 1911, which was made final on 28th February 1912. In execution of that decree the mortgaged properties were sold on 31st March 1913, to the decree-holders and they took delivery of possession on 12th May 1914.

2. In 1918 one Rajkumar Das, a Gurubhai of Mahanth Damodar Das, brought a suit (No. 1 of 1918) under Section 92 of the CPC, in the Court of the District Judge at Darbhanga against Mahanth Damodar Das for his removal. The suit was at first decreed on 28th August 1918, and Mahanth Damodar Das was removed; and in accordance with the scheme prepared by the District Judge, Rajkumar Das was appointed mahanth on 12th September 1919. On appeal by Mahanth Damodar Das to the High Court, the suit was remanded. Eventually the suit was dismissed on 16th March 1922. Rajkumar Das then preferred an appeal to the High Court, but during the pendency of that appeal Mahanth Damodar Das died on 13th September 1922. The appeal thus became infructuous and was allowed to be dismissed for default. Upon the death of Mahanth Damodar Das the plaintiff succeeded him and became the mahanth of the Asthal. He brought the present suit on 11th September 1934, alleging that “Mahanth Damodar Das was a man of very weak intelligence, poor intellect and bad character”; that the disputed properties were Asthal properties, that the defendants' predecessors got the mortgage deed dated 31st January 1902, executed by Mahanth Damodar Das without any consideration and without any legal necessity; that they sub-sequently obtained a collusive and fraudulent mortgage decree; and that in execution of that decree they fraudulently purchased the mortgaged properties and then obtained delivery of possession. It was further alleged that the Asthal had sufficient income in cash and kind for meeting its necessary expenses; that Mahanth Damodar Das had no necessity to borrow any money; and that if he ever borrowed any money from the defendants' predecessors, it was not spent for the purposes of the Asthal. The suit was contested substantially on the grounds that the suit was barred by limitation; that the disputed properties were the personal properties of Mahanth Damodar Das; that assuming that these were the Asthal properties, the mortgage was valid and binding as it was executed for the necessities of the Asthal, the money being required for purchasing an elephant which was necessary for the Asthal, for meeting the costs of survey operation and paying the Government revenue and for other necessities; that the mortgage decree was not fraudulent and was passed on contest, and that therefore the present suit was barred by res judicata. The learned Subordinate Judge has dismissed the suit holding: (1) that the disputed properties were the personal properties of Mahanth Damodar Das; (2) that the mortgage bond was executed for consideration and for legal necessity of the Asthal; and (3) that the suit is barred by limitation. As regards the plea of res judicata, he has overruled it. He has also disbelieved the plaintiff's case that Mahanth Damodar Das was a man of weak intellect and immoral habits. The plaintiff has preferred this appeal.

3. The first question for consideration is whether the disputed properties were personal properties of Mahanth Damodar Dag or were Asthal properties. The plaintiff's case is that the Pokhrauni Asthal was founded in 1844 by Gosain Balmakund Das belonging to the Lashkari Rairagi sect. Balmakund Das was a chela of Mahanth Banmali Das of Choraut Asthal. By two sale deeds, Ex. N and Ex. A, dated 13th May 1840, and 15th May 1840, respectively, Balmakund Das purchased certain properties. In Ex. N he is described as Makund Das and in Ex. A as Gosain Balmakund Das. So in neither of these deeds he is described as Mahanth or Asthaldhari. Exhibit 1(c) is a deed of agreement dated 7th August 1847, executed by Balmakund Das in favour of his disciple Udho Das. In this deed Balmakund Das described himself as Asthaldhari of Pokhrauni and proprietor of the villages purchased by the sale deeds, Exs. N and A and some other property. This deed recites:

Considering my disciple, Udho Das, to be fit by all means, to manage the affairs to serve the fakirs and occasional visitors and to pay the Government revenue in respect of the revenue paying and mustajiri villages appertaining to the said Asthal, I, the declarant, in a sound state of my mind and body, appointed him as the Mahanth, and Gaddinashin of the said Asthal, during my lifetime, in the presence of the fakirs, head raiyats, amalas of my villages and zamindars and seated him on the Gaddi of Mahanthship and put him in possession and occupation of the milkiat villages aforesaid as well as of the villages held in ijara and zerpeshgi, etc., and all the household articles of the said Asthal.

4. This makes it clear that the Pokhrauni Asthal had been founded by that time and the properties referred to in the deed were treated as the Asthal properties. The deed also shows that Balmakund Das's disciple Udho Das was appointed as the succeeding Mahanth. The plaintiff's case is that the money with which the properties were purchased under Ex. N and Ex. A was provided by Balmakund Das's Guru, the Mahanth of Choraut Asthal, for the purpose of founding a branch Asthal. Whether this is true or not, the fact remains that some time after the purchase of those properties Balmakund Das founded the Pokhrauni Asthal and treated those properties as Asthal properties, as the deed Ex. 1(c) clearly shows. In accordance with this deed, Udho Das succeeded as the mahanth. Udho Das had a disciple Bhagwan Das. This Bhagwan Das purchased one anna share of mauza Balwa by a sale deed Ex. 5(a), dated 21st March 1850, for Rs. 1212. Again by a sale deed Ex. 5, dated 12th July 1853, Bhagwan Das purchased another one anna share of mauza Balwa for Rs. 999. The two annas share of mauza Balwa acquired by these sale deeds forms the subject-matter of the present suit. By deed of agreement Ex. 1(b), dated 18th September 1854, Mahanth Udho Das appointed Bhagwan Das as his successor. In this deed certain properties are specified including those purchased by the sale deeds Exs. N and A, and all these properties are referred to as “appertaining to the said Asthal.” The deed provides that on the executant's death his disciple, meaning Bhagwan Das, would be “Mahanth Gaddinashin of the said Asthal.” It is to be noticed that the disputed properties which were purchased by Exs. 5(a) and 5 were not included in this deed Ex. 1(b), the obvious reason being that these were acquisitions of Bhagwan Das, the chela. After the death of Mahanth Udho Das, Bhagwan Das became the mahanth. Mahanth Bhagwan Das in his turn executed a will Ex. 1, dated 28th February 1890, in favour of his chela Damodar Das. By this will he appointed Damodar Das as his successor. It recites:

After my death, the aforesaid disciple, to whom I have given the tilak, kanthi and chadar of Mahanthship, will be the Gaddinashin, in my place and will be the absolute proprietor and possessor of all moveable and immovable properties and household articles appertaining to the said Asthal and to be acquired hereafter, will according to the usage prevailing among the Mahanths, discharge all the duties relating to the Asthal and will entertain casual visitors and will get his name recorded in the office of the Government in the column of the proprietor, on removal of my name.

5. After Mahanth Bhagwan Das's death Damodar Das applied for letters of administration with the said will annexed. The application, Ex. 11, dated 13th September 1895, gives the list of all the moveable and immovable properties “appertaining to the Pokhrauni Asthal.” This includes a “list of villages appertaining to the Pokhrauni Asthal” which is printed at p. 25 of the paper-book Part 3. Item 11 of this list refers to the disputed two annas share of mauza Balwa, otherwise known as Sadarballa. In para. 7 of the application it is stated:

That since the death of his Guroo the said Mahanth Bhagwan Das, your petitioner, has been and is the Mahanth of the said Asthal at Pokhrauni, and that he is in possession of the said Asthal and all the properties appertaining thereto.

6. The successive deeds of appointment referred to above clearly show that ever since the foundation of the Asthal each of the mahanths was treating all the properties in his possession as the properties of the Asthal and was making no distinction whatever between his personal properties, if any, and those of the Asthal. These mahanths were all celibates, being of the Lashkari Rairagi sect. Mahanth Damodar Das, the Guru of the present plaintiff, in his application for letters of administration Ex. 11, clearly admitted that the disputed properties were properties “appertaining to the Asthal.” In these circumstances, the only reasonable inference is that the disputed properties were the properties of the Asthal and not personal properties of Mahanth Damodar Das. Dr. D.N Mitter for the respondents contends that in order to establish that a certain property is an Asthal property, there must be proof either of dedication or that the entire usufruct of the property has always been used for the purposes of the Asthal. But where there is no deed of dedication, dedication may be inferred from circumstances. In the present case the Asthal was founded so far back as prior to 1847. There being no deed of dedication, we have to rely on the circumstances which, as I have already shown, afford sufficient proof of dedication.

7. It is suggested by Dr. Mitter that dedication cannot be effected except by registered deed as required by Section 123 of the Transfer Property Act. But assuming that a gift to an idol is a gift within the meaning of the Transfer of Property Act—though there are decisions to the contrary—the dedication in the present case was made before the passing of the Transfer of Property Act. Dr. Mitter lays great stress upon the fact that in the various deeds of appointment words were used to indicate that the mahanth was “the absolute proprietor and possessor” and that in the records of rights and D registers the mahanth was shown as “the proprietor.” But the words in the deeds of appointment, if not detached from the context, obviously mean that the mahanth had such proprietary interest as a mahanth would have in the Asthal properties. So also in the record of rights and D registers the word “proprietor” must be understood in the same sense. Dr. Mitter refers to the judgment Ex. U(2), dated 16th March 1922, of the District Judge in the suit under Section 92 of the CPC, brought against Mahanth Damodar Das. In this judgment it was held that the properties in the possession of Mahanth Damodar Das were not trust properties. In the first place, there was an appeal against this judgment which however became infructuous on account of the death of Mahanth Damodar Das. In the second place, the main question for determination in that suit was whether there was a public trust within the meaning of Section 92 of the CPC. On the other hand, Mr. Jha refers to the judgment Ex. 12, dated 31st January 1927, in a suit brought by the present plaintiff against some transferees to set aside an alienation of some of the Asthal properties. In that judgment it was held that the property then in dispute was “an endowed property belonging to the deities.” This finding is not admissible evidence in the present suit, because, as pointed out by their Lordships of the Privy Council in 16 Pat 258,1 so far as regards the truth of the matter decided a judgment is not admissible evidence against one who is a stranger to the suit.

8. Dr. Mitter further argues that although in the various documents there was mention of “properties appertaining to the said Asthal,” there is nothing to show that the properties belonged to the deities on whose behalf the present suit is brought. But the deities are the presiding deities in the Asthal and properties appertaining to the Asthal necessarily mean properties of the deities. In my opinion, the disputed properties were the Asthal properties and not the personal properties of Mahanth Damodar Das. The next question is whether the mortgage dated 3rd January 1902 was for legal necessity of the Asthal. The mortgage bond Ex. E recites that the executant stood in need of money in order to purchase an elephant and to pay the costs of survey operation and the Government revenue and to meet other necessary expenses. The bond shows that out of the total consideration of Rs. 5000 a sum of Rs. 2400 was paid in cash and the remaining Rs. 2600 was set off against the price of an elephant which was sold to the mortgagor by the mortgagees. As regards the sum of Rs. 2400 borrowed in cash, the defendants have given evidence to show that Rs. 1600 was required for payment of settlement costs, Rs. 700 for payment of Government revenue and Rs. 200 for litigation expenses. D.W 1 says:

The money was taken for payment of Rs. 1500 as settlement costs, Rs. 700 for revenue and Rs. 200 for litigation costs and the balance for purchase of an elephant.

9. He further says:

Bishun Pragash (one of the mortgagees) asked me to go to the Asthal to inquire as to whether the necessities were real. Narsingh Jha (D.W 4) also went with me. I inquired from Jai Narayan and Beni Lall and they said that the alleged necessities were real. Beni Lall was Dewan of the Asthal. Beni Lall showed me a notice demanding Rs. 1500 as settlement costs.

10. It may be mentioned that D.W 1 is a servant of the defendants and before him his father was their servant. Narsingh Jha, D.W 4, says:

The money had been borrowed for payment of revenue, settlement costs, litigation expenses and purchase of an elephant. I and Manchit Lall (D.W 1) had gone to the Pokhrauni Asthal to inquire into the necessities of the mahanth. We inquired from Jai Narayan and Beni Lall and learnt that the necessities were real.

11. Both Jai Narayan and Beni Lall referred to in these depositions are dead. Jai Narayan was a Gurubhai of Mahanth Damodar Das, as will appear from the evidence of P.W 3. The khewat Ex. 9 shows that it was finally published on 23rd September 1901. It is therefore very likely that settlement costs were demanded near about the time of the execution of the mortgage bond in question. There is evidence to show that 12th January was a kist day for payment of revenue. The plaintiff's own witness 31 who was a servant of Mahant Damodar Das, says that the total survey costs amounted to five hundred to six hundred rupees and the revenue payable for the Asthal properties was Rs. 3000. No doubt he says that the survey costs and the revenue were paid out of the collections of the Asthal, but there is nothing to corroborate him. The best evidence in support of his statement would have been the account books, but they have not been produced. The explanation offered is that one Mr. Toomy who was for some time the manager of Mahanth Damodar Das had removed them. In this connexion reference is made to the petition Ex. 4 dated 25th January 1914, filed by Mahanth Damodar Das in Suit No. 1 of 1918, i.e, the suit under Section 92 of the CPC. In para. 1 of that petition it is stated:

All papers connected with the Asthal were with Mr. G.H Toomy, manager, and he has left the place without making them over to this petitioner. It is necessary to bring these papers and file them.

12. For aught we know, this was a dodge on the part of Mahanth Damodar Das to avoid producing the account books in that suit under S. 92. The same excuse is now put forward by the plaintiff, but it is futile. In the circumstances, there is no reason to disbelieve the evidence of D.W 1 and D.W 4. The only comment on the evidence of D.W 1 made by Mr. Jha is that at the time of the execution of the mortgage bond his father, and not he, was a servant of the defendants. But there is nothing inherently improbable in a servant's son being employed for the purpose spoken of. As regards D.W 1, the comment is that he is the priest of the mortgagees' family. But he says that he was present at Umgaon where the negotiations for the mortgage transaction took place. The learned Subordinate Judge has believed the evidence of these witnesses and I find no sufficient grounds for differing from his estimate of the evidence. It is to be remembered that the mortgage bond was executed so far back as 1902 and the present suit was heard in 1937. The parties to the transactions as also the attesting witnesses to the mortgage bond are all dead. In such a case some value has to be attached to the recitals in the mortgage bond. In 43 IA 2492 their Lordships of the Privy Council laid down:

If a dead by which a Hindu widow alienates property is sought to be set aside soon after its execution, little weight attaches to a recital of the existence of necessity, and it certainly cannot be accepted as proof. As by effluxion of time evidence independent of the recital becomes unavailable, a recital of necessity, consistent with probability and the circumstances, assumes greater importance. It is clear evidence of a representation to the purchaser, and when evidence of actual inquiry by him has become impossible, the recital, coupled with circumstances which justify a reasonable belief that an inquiry would have confirmed its truth, is sufficient evidence to support the deed.

13. In the present case the recital in the mortgage bond regarding the necessity for payment of settlement costs and Government; revenue is amply supported by the fact that the settlement costs and Government revenue were required to be paid near about the time of the execution of the mortgage. As regards the litigation costs for which Rs. 200 is said to have been required, there is no recital in the mortgage bond. Mr. Jha also points out that there is no evidence that any litigation was pending at that time. However, Rs. 200 is a small item and there is the evidence of D.W 1 and D.W 4. Next as to Rupees 2600 which was set off against the price of an elephant, it is seriously contended by Mr. Jha that the purchase of an elephant could by no means be regarded as a necessity of an Asthal. The evidence shows that Mahanth Bhagwan Das had an elephant. This elephant appears to have been sold shortly after his death by Mahanth Damodar Das by sale deed, Ex. H dated 25th June 1896 along with some immovable properties. Subsequently, Damodar Das purchased the elephant from the mortgagees. This elephant died after the plaintiff became the mahanth. After its death the plaintiff purchased another elephant. D.W 1 says:

The Thakurs used to be taken out on the Dasara day, 500 to 700 man used to assemble on the occasion. Thakurji used to be taken in a palanquin. I saw an elephant in the Asthal in the time of Bhagwan Das. The elephant used to remain present during the festival occasion.

14. The plaintiff's own statement is “an elephant is not an absolute necessity for an Asthal.” The defendants have adduced evidence to the effect that “the elephant was necessary for use during festival occasions and for going on tour to inspect zerait lands.” There is nothing to suggest that the elephant was meant for the personal use or luxury of the mahanth himself. It is significant that the plaintiff himself purchased, an elephant for Rs. 3200 out of which Rs. 1000 appears to have been raised by settling some land which was presumably Asthal property: vide Ex. C(15) and Ex. C(16), entries in account book dated 25th November 1931.

15. From the evidence it is pretty clear that an elephant was necessary for use during festival occasions. Mr. Jha contends that even assuming that an elephant was necessary, it was not such a necessity as would justify borrowing by a mahanth on mortgage of the Asthal properties. The matter, however, should be approached not from an absolute standard of necessity but from the point of view of what considerations would weigh in the mind of a prudent manager. As pointed out by their Lordships of the Privy Council in 44 IA 1473 “necessity” and “benefit of the estate” are general and elastic terms. To a religious institution like a math its prestige and influence are of vital importance. Preservation of its prestige and influence is no less necessary than preservation of its property. The evidence in this case shows that an elephant was being maintained in the Asthal since the time of Mahanth Bhagwan Das. If an elephant was necessary for use during festival occasions, Mahanth Damodar Das was the best person to judge whether, in the circumstances, it would be prudent for him to purchase one by borrowing. He might have naturally thought that he would be able to repay the money in due course out of the income of the Asthal. It is difficult to hold that he did not act as a prudent manager by purchasing the elephant by borrowing.

16. Mr. Jha contends that there must be not only necessity but unavoidable necessity to support an alienation of Asthal property. In support of this contention he relies on the fact that the expression “unavoidable necessity” was used by their Lordships of the Privy Council in 36 IA 1484 and 51 IA 83.5 But it cannot be said that their Lordships wanted to make any distinction between “necessity” and “unavoidable necessity.”

17. Mr. Jha then contends that Pokhrauni Asthal had a large income, and therefore there ms no necessity for borrowing any money. It appears that immediately after the death of Mahanth Bhagwan Das when Damodar Das applied for letters of administration his claim was contested by Rajkumar Das, another chela of Mahanth Bhagwan Das. The dispute however was ultimately settled by a deed of agreement Ex. 1, dated 6th February 1896. On 25th June 1896 Damodar Das sold some of the Asthal properties including an elephant for Rs. 11,000 by a sale deed Ex. H. This shows that for some reason or other there was mismanagement and the income of the Asthal went down. The financial position of the Asthal at the time of execution of the mortgage bond in question could have been best proved by the account books. But, as I have already pointed out, these books were not produced. The plaintiff alleged and adduced evidence to show that Mahanth Damodar Das was a man of weak intellect and immoral habits, but the learned Subordinate Judge has disbelieved this part of his case. His finding in this respect has not been challenged before us. In any view a bona fide lender who advances money cannot be affected by the precedent mismanagement of the estate. If at the time of execution of the bond in question Mahanth Damodar Das had sufficient funds in his hands, it is hardly likely that he would incur the loan. I therefore agree with the learned Subordinate Judge in holding that there was legal necessity for the execution of the mortgage bond in question.

18. Mr. Jha contends that even then the mortgaged property could not be sold and the proper remedy would be to appoint a receiver of the entire Asthal properties for the purpose of satisfying the mortgage debt. He bases this argument on the decision of the Privy Council in 53 IA 253.6 In that case the facts were briefly these. The mahanth of a math borrowed various sums of money on hand notes bearing interest at 2 per cent, per mensem or more for the purpose of constructing pucca buildings for the accommodation of rich devotees visiting the math. The actual sum expended on the construction of these pucca buildings amounted to Rupees 9337. But owing to the very high rate of interest on the loans the mahanth's indebtedness amounted by November 1906 to Rs. 25,000. To meet this indebtedness the mahanth borrowed from another creditor on; 6th November 1906 a sum of Rs. 25,000 bearing; interest at 1 per cent, per mensem by mortgaging some of the math properties. The mortgagee sued to enforce the mortgages. In that suit both the trial Court and the High Court held that the mortgage was not supported by legal necessity, and therefore they passed a personal decree only against the mahanth. On appeal by the mortgagee to the Privy Council, their Lord, ships held that:

It was the high rata of interest, which he (the mahanth), was already bound to pay; that was the necessary and immediate cause of his giving this mortgage, though the remote cause of it was the getting into debt by the building operation.

19. In this view their Lordships, following, an earlier decision in 2 IA 145,7 passed a decree declaring that the debt should be paid by the mahanth personally or else realized from the profits of the debuttar property and their Lordships remitted the case to the High Court with the following direction:

That the High Court should make a personal decree against the defendant for the payment of the debt within a specified time, and on his failure to pay, to direct an inquiry to be held by the Court of the Subordinate Judge as to the sums, legitimately attributable to the endowment under the Hindu law, and a receiver should be appointed to realize the rents and profits of the debuttar estate, and the mahanth's share, after payment of a maintenance allowance to be fixed by the Court should be allocated for the payment of the plaintiff's debt.

20. Thus, this decision was based on its own peculiar facts. In any view, this decision cannot be applied to the present case where the mortgaged property was already sold in execution of the mortgage decree that was passed against the mortgagor mahanth. The execution sale must therefore stand. Upon this finding it is unnecessary to consider the questions of limitation and res judicata. But as these points have been argued before us, it is better to deal with them. The learned Subordinate Judge has held that as the sale and dakhaldehani by the defendants admittedly took place more than 12 years prior to the suit, the suit is clearly barred by limitation.

21. Mr. Jha contends that the period of limitation should be computed from the death of Mahanth Damodar Das which took place just within 12 years before the institution of the suit. He relies on the decision of the Privy Council in 48 IA 302,8 60 IA 124,9 62 IA 4710 and 63 IA 261.11 48 IA 302 related to a permanent lease granted by a mahanth in respect of an item of property appertaining to his math. The lease was not given for necessity and so was beyond the powers of mahanth to grant. Their Lordships held that the lease could endure only for the grantor's lifetime, and that the possession of the lessee did not become adverse until his death. 60 IA 124 related to a permanent lease as well as a sale effected by a previous mahanth. More than 12 years after these alienations, but within 12 years from the death of that mahanth, the succeeding mahanth brought a suit to recover possession of the alienated properties. The question arose whether the suit was barred by limitation. The High Court held that it was, computing the period of 12 years from the date of alienation. The Privy Council reversed this decision and held that limitation would run from the death of the alienating mahanth. Their Lordships after referring to 48 IA 302 said:

In other words, a mahanth has power (apart from any question of necessity) to create an interest in property appertaining to the math which will continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of mahant of the math, with the result that adverse possession of the particular property will only commence when the mahanth who had disposed of it ceased to be mahanth by death or otherwise.

If this be right, as it must be taken to be, where the disposition by the mahanth purports to be a grant of a permanent lease, their Lordships are unable to see why the position is not the same where the disposition purports to be an absolute grant of the property; nor was any logical reason suggested in argument why there should be any difference between the two cases. In each case the operation of the purported grant is effective and endures only for the period during which the mahanth had power to create an interest in the property of the math.

22. Their Lordships concluded their judgment in these words:

In view of these statements by the Board, their Lordships hold that in the present case the lease and the deed of sale of 13th February 1911, were good and effective so long as Rampat Das continued to be mahanth, and that therefore adverse possession only commenced when he died.

23. In 62 IA 47 it was held, following the decision in 60 IA 124 that the period of limitation for a suit to set aside a sale effected by a preceding mahanth would run from the date of that mahanth's death and not of the sale. The case in 63 IA 261 related to the setting aside of a permanent lease granted by a previous dharmakarta of a temple. This case is covered by the principle laid down in 48 IA 302. Their Lordships re-stated the principle that an alienation of debuttar property by the head of a math is not void ab initio, but is good for the period of his office. These cases therefore clearly establish that an alienation of debuttar property by a mahanth, be it a permanent lease or sale, if not supported by necessity, is valid during the tenure of his office, and consequently possession of the alienee does not become adverse till after the death of the alienating mahanth.

24. Dr. Mitter, on the other hand, relies chiefly on the decision of the Privy Council in 50 IA 29512 in which it was held that the principle laid down in 48 IA 302 had no application where the property passed under an execution sale. In that case certain trust property was attached and sold in execution of a decree against a previous trustee and possession was taken. The decree apparently was a money decree. More than 12 years after the delivery of possession, but only two days after the judgment-debtor ceased to be the trustee, being removed by a decree of Court, a suit was brought by the succeeding trustee to recover the property sold. The suit was held to be barred by limitation. It was contended before their Lordships that “the statute of limitation begins to run afresh as each new trustee succeeds to the office,” and in support of this contention reliance was placed on the case in 38 Cal 52613 and on 48 IA 302. Their Lordships disposed of this contention in these words:

But those authorities do not assist the appellant. In each case they relate to the effect of an attempt on the part of a trustee to dispose of the property by a permanent mukarrari lease. This he has no power to do, though he is at liberty to dispose of it during the period of his life and a grant made for a longer period is good, but good only to the extent of his own life interest. It follows therefore that possession during his life is not adverse, and that upon his death the succeeding trustee would be at liberty to institute proceedings to recover the estate, and the statute would only run against him as from the time when he assumed the office. Such an argument has no relation to the case where, as here, property has been acquired under an execution sale and possession retained throughout.

25. It is thus clear that their Lordships were making a distinction between an alienation made by the trustee himself and an execution sale, in other words, between a voluntary alienation and an involuntary alienation. Now, a sale in execution of a mortgage decree cannot, strictly speaking, be called an involuntary alienation. A mortgage is certainly a voluntary alienation. The execution sale that follows under the mortgage decree is only the result of enforcing the mortgage in accordance with the provisions of the law. On principle there does not appear to be any difference between a sale under a mortgage decree and a private sale. The present case, in my opinion, will be governed by the principle laid down in 60 IA 124. Dr. Mitter also relies on a decision of the Calcutta High Court in 62 CLJ 1014 in which it was held that when debuttar property is sold in execution of a mortgage decree, the 12 years period of limitation runs from the date of sale. This decision appears to have been based on the said Privy Council case in 50 IA 295. But with all respect to the learned Judge, I must say that the Privy Council case could not be regarded as an authority applicable to a sale in execution of a mortgage decree. It cannot be seriously disputed that a sale in execution of a mortgage decree does not stand exactly on the same footing as a sale in execution of a money decree. In my judgment limitation would run from the date of death of Mahanth Damodar Das. Accordingly the suit is not barred by limitation. Coming to the question of res judicata, Dr. Mitter contends that in the mortgage suit Mahanth Damodar Das was impleaded as representing the deities and therefore the decision in the mortgage suit is binding on the succeeding mahanth. He relies on the decision of the Privy Council in 2 IA 145. In that case a decree passed against a former shebait was held to be binding upon the succeeding shebait on the principle that the succeeding shebaits formed a continuing representation of the idol's property. But their Lordships clearly pointed out that:

Before however applying the principle of res judicata to judgments of this character, the Courts should take care to be satisfied that the decrees relied on are untainted by fraud or collusion, and that the necessary and proper issues were raised, tried, and decided in the suits which led to them. These conditions appear to have been fulfilled in the present case.

26. But the conditions here are just the reverse. In the plaint Ex. D of the mortgage suit there is nothing to show that Mahanth Damodar Das was impleaded as representing the deities. There was no allegation that the debt was contracted for the benefit of the Asthal or the deities, and that the mortgage was binding on them. All that was alleged in para. 3 was that “the defendant had necessity of money for purchasing one elephant……” What is more important is that no issue on the question of legal necessity was raised or decided in that suit. Having regard to the course of proceedings in that suit, it is difficult to hold that the deities were effectively represented therein. Obviously therefore the mortgage decree cannot operate as res judicata. In the result the appeal fails and must be dismissed with costs.

Meredith, J.:— I entirely agree.

G.N/R.K

27. Appeal dismissed.