Kedar Nath Goenka vs Mahanth Jagar Nath Das and Others

Das, J.—On the 8th September 1898 Mahanth Jagar Nath Das who was the head of Suja, Asthal died and on his death Siaram Das took possession of the Asthal, and of the properties appertaining thereto. On the 10th January 1899 Mababir Das, claiming to be the disciple of Jagar Nath Das, instituted a suit against Siaram Das in the Court of the Subordinate Judge of Monghyr for a declaration of his title to and for recovery of possession of the properties appertaining to Suja Asthal. On the 23rd September 1899 a Receiver was appointed to take charge of the properties appertaining to the Asthal. Siaram Das was thus deprived of all nuans either of supporting himself or of defending the suit. He therefore borrowed money from Baijnath Goenka on certain ekrarnamas. Baijnath Goenka is represented in these appeals by Kedar Nath Goenka the defendant appellant. Siaram Das borrowed money, as I have said from Baijnath Geonka to defray the expenses of the litigation which had been commenced by Mahabir Das. Mahabir''s suit was dismissed in the Court of ''the first instance, but on appeal the parties entered into a compromise by which each admitted the right of the other to be the Mahanth of the Asthal and they agreed to drride the income of the Asthal in equal shares. In 1903 Baijnath Goenka instituted a suit against Siaram Das and Mahabir Das for recorery of over a lac of rupees on the foot of the ekrarnamas which had been executed by Siaram Das in his favour. This suit was suit No. 500 of 1903. He got a decree for Rs. 22,073 in the Calcutta High Court as against Siaram Das, his suit against Mahabir Das being dismissed. In 1907 Baijnath Goenka commenced execution proceedings against Siaram Das. Some of the properties appertaining to the Asthal were put up for sale and were purchased by the plaintiffs in these suits. Mahinth Jagarnath Das plaintiff in Suit No. 477 of 1918, purchased the properties set out at the foot of his plaint for Rs. 6,476 and Bikramajit Singh, plaintiff in Suit No. 408 of 1918, purchased the properties set out at the foot of his plaint for Rs. 4,525. These purchases were on the 18th and 2Jsfc of January 1908. Siaram Das then supplied to the Subordinate Judge of Monghyr for setting aside the sale under the provisions of Section 311 of the Code of Civil Procedure. The learned Subordinate Judge on the 11th May 1908 set aside the sale. The plaintiffs thereupon applied to the Court for refund of the purchase money. Baijnath Goenka objected, as he had filed an appeal to the High Court against the order of the learned Subordinate Judge setting aside the sale. The plaintiffs undertook to redeposit the purchase money in case the order of the learned Subordinate Judge was set aside on appeal. On that undertaking being given they were permitted to withdraw the purchase money from the Court. During the pendency of Baijnath Goenka''s appeal in the High Court a suit was instituted in 1909 under the provisions of Section 92 of the CPC for removal of Siaram Das from the Mahanthship of Suja Asthal. On the 30th September 1910 the learned District Judge of Bhagalpur by his decree removed Siaram Das from the Mahanthship of the Suja Asthal. The effect of this decree was to put Mahabir Das in sole possession of the Asthal properties. Siaram Das appealed against the judgment of the learned District Judge of Bhagalpur to the Calcutta High Court and on the 28th May 1912 the Calcutta High Court dismissed the appeal of Siaram Das. Baijnath Goenka''s appeal against the order of the learned Subordinate Judge of Monghyr setting aside the sale came up for hearing before the Calcutta High Court on the 4th February 1913. The Calcutta High Court set aside the order of the learned Subordinate Judge and remanded the case for trial by the Court of the first instance. On remand Siaram Das, having no further interest in the Asthal properties, did not appear to support the application for setting aside the sale. The application was accordingly dismissed for default and in due course the sales were confirmed: Baijnath Goenka thereupon applied for an order directing the plaintiffs in these actions to deposit the purchase money in Court in terms of their undertaking. The plaintiffs objected but their objections were disallowed on the 28th July 1917 and they were directed to deposit in Court the sums withdrawn by them with interest from the date of the withdrawal. They appealed to this Court and their appeals were dismissed on the 27th May 1918.

These actions were then brought on the 28th August 1918 for a declaration that they were not liable to deposit the purchase money in Court on the grounds first, that the properties sold at the execution sale were debuttar properties and that Siaram Das had no right to transfer them and that the plaintiffs as purchasers have acquired no title in them, secondly, that Mahabir Das, the present Mahanth will not allow the plaintiffs to take possession of those properties, and thirdly that as Baijnath Goenka omitted to notify the encumbrances of Dalip Narain Isungh subsisting on the properties purchased by them he was guilty of fraudulent concealment and that he ought not to be allowed to compel the plaintiffs to deposit the purchase money in Court. The learn-ed Subordinate Judge has come to the conclusion that the title in the Asthal properties did not pass to the plaintiffs at the auction sale and he has accordingly made a declaration in favour of the plaintiffs that they are not liable to refund the purchase money in respect of the purchases made by then in execution case No. 427 of 1907.

I am wholly unable to agree with the decision of the learned Subordinate Judge. I doubt very much whether a suit lies for a declaration that they are not liable to deposit the purchase money in Court. Under Order 21 Rule 91 the purchaser decree-holder in execution of a decree has the right to apply to th9 Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property soil. It appears to me that when the matter has passed the domain of contract to the domain of sale the purchaser can only have the sale set aside on the ground that there was some fraudulent misrepresentation on the part of the decree-holder. But it seems to be settled law in this country that a suit lies for setting aside the sale on the ground that the vendor had no saleable interest in the property See Prasamia Kumar Bhattacharjee v. Ibrahim Mirza 41 Ind.Cas. 924 and Rustomji Ardeshir v. Vinayak Gangadhar Bhat [1911] 35 Bom 29. It is not necessary for me to express a final opinion on this point, because I am satisfied that the plaintiffs are not entitled to succeed in this case.

The basis of the judgment of the learned Subordinate Judge seems to be this--that Mahanth Siaram Das was a trespasser and never had a good title to the Asthal. It is in my opinion impossible to support this view in the face of the admitted history of the Asthal from 1896 up to 1912. Siaram undoubtedly took possession of the Asthal and of the properties appertaining thereto upon the death of Mahanth Jagar Nath Das. It is true that suit was instituted by Mahabir Das against him but that suit failed in the Court of the first instance and in the High Court it was compromised on the footing that Mahanth Siaram Dai had a good and valid title to the Asthal, Siaram Das himself admitting that Mahabir Das had an equally good and valid title to the Asthal After the decision of the Calcutta High Court in the suit instituted by Mahabir Das against Siaram Das, Siaram Das remained in undisputed possession of the properties until he was removed by the decree of the Court in 1912. No body seems to have questioned his right to be the Mahanth of the Asthal. In fact the suit which was filed under the provisions of Section 92 of the CPC admits by implication that he was rightfully in possession of the properties as the Mahanth of the Asthal. In my opinion it is impossible to hold that Siaram Das was a trespasser and was-not rightfully in possession of the Asthal.

That being so it is necessary to consider whether Siaram Das had a valid title at any time to convey the properties. Now the Mahanth of an endowment is the proprietor of the properties although he holds these properties in trust. This is how Judicial Committee has described the position of the Mahanth in the recent case of Sri Vindya Varuthi Thirtha Swamigal v. Balusami 1922 PC 123.

The Mahanth of an establishment has very large administrative powers over the affairs of the Asthal and undoubtedly he has, power to sell or mortgage the property in case of need or for the benefit of the Asthal. That being so it is impossible to maintain that he has no saleable interest in the property. Apart from any other consideration, when the facts in connection with Baijnath Goenka''s loans are examined it must follow that there was a legal necessity for those loans. As I hare said before, directly after the institution of the suit by Mahabir Das a Receiver was appointed to take charge of the properties appertaining to the AsthaL Siaram was accordingly deprived of all means either of supporting him-self or of defending the suit. It was absolutely necessary for him to raise a loan in order to defend his title against the hostile attack made on it by Mahabir Das. It was in these circumstances that Baijnath Goenka lent him the money and in ray opinion it is impossible to say that there was no legal necessity in respect of those loans. The case of Shankar Bharati Swami v. Venkapa Naik [1885] 9 Bom 4422 is decisive on this point. That was also a case where an attack was made on the title of one Vidya Shankar who held the Math properties. Vidya Shankar borrowed money in order to maintain himself and to defend the suit brought against him. Sargent C.J. came to the conclusion that a loan effected under such circumstances to meet the exigencies of the presiding Swami and to restore tranquility to the Math would according to the custom and usage of the Math be regarded as properly contracted.

This case was cited before the learned Subordinate Judge, but he thought that the case did not apply because it was not shown first, that Mahanth Siaram Das was a real Mahanth of the Suja Asthal, secondly that the loan was bona-fide advanced for defending his title and thirdly, that Baijnath Goenka in good faith believed that he was advancing the loan for the interest of the Asthal. So far as the first ground is concerned I have dealt with it fully. There is no sort of reason for holding that Mahanth Siaram Das was not the Mahanth of the Suja Asthal. So far as the second point is concerned the loan was undoubtedly taken in order to enable Siaram Das to defend hid title as against the hostile attack made on it by Mahabir Das. That was held in the suit between Baijnath Goenka and Mahanth Siaram Das and so far as the last point is concerned upon the finding that Baijnath Goenka did advance the money in order to enable Siaram Das to defend, his title as against the attack made on it by Mahabir Das there is no reason to doubt that it was advanced in good faith. No doubt Baijnath Goenka stipulated that he would receive over a lac of rupees in return for the money which he spent on behalf of Siaram Das, but then he did not get a decree for the sum which he claimed: in the action against Siaram Das. His decree was for the sum actually expended by him in defending the title of Siaram Das with reasonable interest upon the money so expended by him. There is in my opinion no, reason to doubt that the money was bona fide advanced by Baijnath Goenka in order to enable Siaram Das to defend his title. The case of Raja Peary Mohan Mookerjee v. Narendra Nath Mookerjee [1905] 32 Cal 582 is directly in point. If there was legal necessity in respect of the loan, it must follow that Siaram Das had a good title to convey the properties and if he could convey the properties voluntarily those properties can be seized in execution of a decree which was properly obtained by Baijnath Goenka against Siaram. Das for a debt which was, properly incurred by Siaram Das. In my opinion the plaintiffs in these action have acquired a good and valid title to the properties, by the purchase made by them and they were note entitled to have a declaration that, they are not liable to deposit the purchase money in Court.

So far as the other point is concerned, namely, that there was fraudulent concealment on the part of Baijnath Goenka in so far as he did not notify the encumbrances of Dalip Narain Singh the judgment of the learned Subordinate Judge is in favour of the appellant. It appears from the judgment that Baijnath Goenka did file a petition in the previous execution case which was Execution Case No. 668 of 1905 notifying the encumbrances affecting the properties. It is quite true that the sale proclamation did not set out these encumbrances, but it is impossible to uphold the contention of the plaintiffs that there was fraudulent concealment on the part of the decree-holder. The case of Khetro Mohan Dutla v. Sheikh Dilawar [1918] 3 PLJ 516 is conclusive on this point. This Court in. that case held that however if a purchaser has bought a property the title as to which is defective or if he has been misled on account of fraud or omission on the part of the decree-holder it is open to him to seek his remedy as the law allows. But there is no reason why a Court should interfere on behalf of the auction purchaser and set aside the sale simply because an auction purchaser has bought a bad title. Mullick and Thornhill, JJ., in delivering the judgment of the Court pointed out that every man buys at an auction with his eyes open and he general principle that an auction purchaser cannot attack his own purchase except on the ground that the judgment debtor had no saleable [interest in the property must apply. In my opinion the decree passed by the learned Subordinate Judge in this case cannot be supported. I would allow the appeal and set aside the judgment and the decree passed by the Court below and dismiss both the suits with costs in both the Courts. The auction purchasers must forthwith deposit the purchase money in Court with interest at six per cent, from the 10th May 1913, that being the date when the sale in their favour was first confirmed.

Bucknill, J.

I agree.