Case: Biram Prakash &amp; Others Vs. Narendra Dass &amp; Others

had originally purchased almost the whole of the building. There was no response from the Akhara and therefore the Committee of Trustees resolved on May 30, 1945 to negotiate a sale with respondents 3 and 4. Ultimately respondents 3 and 4 agreed to purchase a much smaller portion of the Dharamshala for the amount of Rs. 1,50,300 payable to the Akhara. On June 14, 1945 respondents 1 and 2 executed the sale deed in favour of respondents 3 and 4 and they recited in the course of this document that the transaction was entered into in the interest of the Math because the entire building of the Dharamshala would be lost to the Math for ever if the transaction with respondents 3 and 4 was not concluded and the amount, Rs. 1,50,300 was not deposited in the High Court within the time granted. It is recited in the sale deed that by alienating a portion of the building for Rs. 1,50,300 in favour of respondents 3 and 4 a sufficient portion of the property would be saved for the gaddi and the gaddi will be benefited. In this state of facts it is clear that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 was supported by legal necessity, for otherwise the portion of the Dharamshala which was saved by means of the sale deed would have been lost irrevocably to the trust.8. In Prosunno Kumari Debya v. Golab Chand Baboo, (1874-75) 2 Ind App; 145 (PC) it was observed by the Judicial Committee that notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is competent for a sebait to incurdebts and borrow money for the service of the idol and preservation of its property, to the extent to which there is an existing necessity for so doing, his power in that respect being analogous to that possessed by the manager for an infant heir.In Hunooman Persaud Panday v. Mt. Babooee Mundraj Koonweree, (1856) 6 moo Ind App 393 at p. 423 (PC) Lord Justice Knight Bruce observed:"The power of the manager for an infant heir to charge an estate not his own is, under the Hindu , law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. But where, in the particular instance the charge is one that a prudent owner would mark in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. But, of course, if that danger arises or has been arisen from any misconduct to which the lender is or has been a party, he cannot taken advantage of his own wrong to support a charge in his own favour against the heir grounded on a necessity which his own wrong has helped to cause. Therefore the lender in this case, unless he is shewn to have acted mala fide, will not be affected, though it be shown that with better management the estate might have been kept free from debt.In Niladri Sahu v. Mahant Chaturbhuj Das, 53 Ind App 253: (AIR 1926 PC 112 ) the mahant of a math mortgaged certain of the endowed properties at 1 per cent per mensem in order to discharge loans at 2 per cent per mensem which were an accumulating burden upon the endowment, he also covenanted personally to pay. The original loans had been incurred mainly for the purpose of constructing pakka buildings for the accommodation of wealthy devotees visiting the math, and in part for the ordinary expenses of the worship. In a suit to enforce the mortgage against the mahant personally and against the mortgaged property, in which suit the mahant failed either to give evidence or to produce the books of the math it was held by the Judicial Committee that the mortgage was for necessity so as to be within the power of the mahant, even if the original loans had been incurred recklessly and not for the benefit of the math, which however was not shown to have been the case. At p. 267 (of Ind App): (at p. 118 of AIR) Lord Atkinson states:"Even if the building scheme of the defendant had been reckless, inconsistent, unsound and liable to fail, which has not been proved, what drove him to borrow this money Rs. 25,000 on mortgage, to pay old debts, and so be relieved of the oppressive burden which the exorbitant rate of interest at which these earlier loans were made imposed upon him? It was the high rate of interest, which he 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, In their Lordships view the principle of the case above mentioned applies to this case.9. In testing, therefore, the question of legal necessity for the impugned transaction regard must be paid to the actual pressure on the estate, the immediate danger to be averted or the benefit to be conferred upon the trust estate. Applying the test in the present case, we are satisfied that the transaction of sale dated June 14, 1945 in favour of respondents 3 and 4 was beneficial to the gaddi of Shanter Shah and the finding of the lower courts on this point is correct.10. On behalf of the respondents Nos. 3 and 4 Mr. Viswanatha Sastri contended that the decision of the High Court on the issue of res judicata was not correct. We are, however, satisfied that the High Court was right in taking the view for the reasons given by it that the decision in suit No. 3 of 1943 did not operate as res judicata.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not think there is any warrant for accepting this argument.Both the lower courts have concurrently found that the Dharamshala at Hardwar was not independent of the endowment of Gaddi Shanter Shah but that it was only a part of the property of the Mahant of Shanter Shah. In our opinion, the finding of the lower courts is supported by adequate evidence. It is the admitted position that Baba Bakhat Mal was the founder of Gaddi Shanter Shah which was a Math intended for the initiation of disciples into the mysteries of the Udasi cult and for imparting spiritual knowledge of the Udasi cult. Exhibit 14 is a copy of a proceeding under Act II of 1819 and Act III ofview of this evidence we are of opinion that both the lower courts have rightly found that the Dharamshala at Hardwar was not a separate endowment but was a part and parcel of the Gaddi Shanter Shah. We are of the opinion that Mr. Purshottam Tricumdas has been unable to make good his submission on this aspect of theappears that Mahant Pooran Das resigned the Gaddi of Shanter Shah and Narendra Das was installed as Mahant in his place. In the interest of the Gaddi Mahant Narendra Das appointed a committee of trustees to advise him in the management of the affairs of the trust. The committee of trustees was appointed in pursuance of an agreement dated July 27, 1944. The committee consisted of eight leading Mahants of the Udasi sect and the committee was constituted to safeguard the interest of the trust and to place the management of its affairs on a satisfactory hasis. After the High Courts order dated April 30, 1945 efforts were made by Mahant Narendra Das and the committee of trustees appointed by him to persuade the Akhara to take a smaller portion of the Dharamshala for the same amount, but their afforts were fruitless. The committee of trustees and Mahant Narendra Das had meetings on April 15, 1945 and April 30, 1945 to consider the matter. After the Akhara refused the offer of the committee of trustees, respondents 3 and 4 were approached by the committee and were persuaded to take a much smaller portion of the building of Dharamshala for the same amount. It was in these circumstances that respondents1 and 2 executed the sale deed on June 14, 1945 in favour of respondents 3 and 4 for the portion of the Dharamshala mentioned in that document for a consideration of Rs.very object of a Math is to maintain a competent line of religious teachers for propagating and disseminating the religious doctrines of a particular order or sect. In the eye of law there cannot be a Math without a lawfully appointed Mathadhipati as its spiritual head. For the proper functioning of a Math, it is also essential that the rightful Mahant should be in control and possession of the property belonging to the Math. Where, therefore, a lawful Mathadhipati is kept out of the possession of the endowed property by a trespasser asserting a hostile claim, there is a hostile title asserted in the litigation against the Math itself. In the litigation in suit No. 135 of 1915 filed by Sital Das the expenses incurred by the mahant must therefore be held to have been incurred in repelling a hostile attack on the trust property.Similarly, in suit No. 70 of 1925 filed by Anand Prakash against Saheb Das which was decided in favour of the latter, the expenses incurred by Mahant Saheb Das must be held to have been incurred in repelling a hostile attack on the trust property. This conclusion is also borne out by the circumstance that none of the succeeding Mahants challenged the validity of the mortgage transaction and by the other circumstance that the Akhara being the high command of the Udasi sect proceeded on the basis that the cost of the litigation was a legitimate charge on the Mathare accordingly of opinion that the mortgage deed dated June 1, 1933 executed by Saheb Das is supported by legal necessity. It is equally manifest that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 executed to satisfy the mortgage decree obtained by the Akhara is supported by legal necessity and is a valid transaction. We accordingly reject the argument of Mr. Purshottam Tricumdas on this part of the case.In this state of facts it is clear that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 was supported by legal necessity, for otherwise the portion of the Dharamshala which was saved by means of the sale deed would have been lost irrevocably to the trust.In testing, therefore, the question of legal necessity for the impugned transaction regard must be paid to the actual pressure on the estate, the immediate danger to be averted or the benefit to be conferred upon the trust estate. Applying the test in the present case, we are satisfied that the transaction of sale dated June 14, 1945 in favour of respondents 3 and 4 was beneficial to the gaddi of Shanter Shah and the finding of the lower courts on this point isare, however, satisfied that the High Court was right in taking the view for the reasons given by it that the decision in suit No. 3 of 1943 did not operate as res judicata.