Nabakishore Dutt vs Jagannath Ramanuj Das and Another

James, J.—The defendants to this, are a mahant of a math in Cuttack and his natural father who was formerly his manager. In 1924 a suit was instituted on behalf of the math for recovery of possession of certain land on the allegation that the occupier of it was a benamidar of the mahant. The principal defendant in that litigation was Ichhabati Dibya, daughter of the brother of defendant 2. The suit was dismissed in the Court of the Subordinate Judge, and in 1926 an appeal from that decision was instituted. For the purpose obtaining court-fee for the memorandum of appeal and for petty miscellaneous expenses, defendant 2 in his capacity of agent for defendant 1, borrowed Rs. 400 from the plaintiff for which he gave a hand-note.

When the plaintiff instituted the suit with which we are here concerned for recovery of his dues, defendant 2 denied liability on the ground that he executed the hand-note as agent of defendant 1, and both he and defendant 1 denied that consideration passed, while defendant 1 also took the defence that the dedicated property could not be bound in the absence of legal necessity.

The Munsif found that the consideration stated in the hand-note had passed and that defendant 2 had executed the hand-note as agent of defendant 1. Defendant 1 had stated that he had asked defendant 2 not to file the suit or the appeal, but the Munsif found that the statement was false, and that defendant 1 had himself taken part in the litigation.

The Munsif came to the conclusion that the litigation for which the money was borrowed was not of a speculative nature, that it was for the protection of the math property and he held, therefore, that the debt could be recovered from the dedicated property in possession of defendant 1. The Munsif''s decree was set aside on appeal by the Subordinate Judge, Who affirmed generally his findings of fact, but held that the litigation for the expenses of which the loan was taken was of a speculative nature, and that therefore the math property could not be bound. The question was also raised before the Subordinate Judge of the power of defendant 1 to delegate his duties to defendant 2. It was made clear that defendant 2 was, for matters in general, the authorised agent of defendant 1, but the manner in which the power was conferred upon him wag not clear.

He had described himself as trustee, and the learned Subordinate Judge pointed out that the mahant being himself a trustee could not delegate his fiduciary duties to another man.

On the question of personal liability, the learned Subordinate Judge held that the mahant, defendant 1, was not personally liable because the money borrowed from the plaintiff had not been used by him for his personal purposes; he had not been sued in his personal capacity, and there was no special prayer in the plaint for a personal decree against him. The learned Subordinate Judge declined also to grant a personal decree against defendant 2 on the ground that he had merely acted as agent of defendant 1 and he had not appropriated any portion of the money for his own purposes.

The Subordinate Judge, therefore, dismissed the suit, and the plaintiff appeals from that decision.

Mr. S.C. Chatterji on behalf of the plaintiff-appellant argues in the first place that the litigation of 1924 ought not to have been held to be of a speculative nature. The learned Subordinate Judge remarked that defendant 1 launched upon a most unprofitable litigation since he was not in possession of the disputed land. Mr. Subba Rao on behalf of the respondents does not suggest that the learned Subordinate Judge by this means that in no circumstances can a mahant or a shebait be justified in instituting a suit for recovery of math property which is not at the time in his possession, but he points out that the learned Subordinate Judge has made a distinction between suits to protect property which is in actual possession and suits relating to property which may possibly be acquired as the result of litigation.

The meaning of the learned Subordinate Judge is not quite clear. He may be referring to a passage in the judgment of the Munsif, in which the learned Munsif refers to an admission of defendant 1 that the math had never been in possession of the land which was the subject matter of that litigation, and that the purpose of the litigation was to satisfy a grudge against the father of Ichbabati Dibya, the defendant of that suit. However that may be, the suit failed. The learned Subordinate Judge has found that it was of a speculative nature, and although such a finding, as a finding, of fact, may not be binding on us in second appeal, since the question may possibly be regarded as a mixed question of fact and law, the learned advocate for the appellant has been unable to indicate any ground on which the finding of the learned Subordinate Judge on that particular point could reasonably be varied.

The learned advocate argues in the second place that whether the math property is bound or not, defendant 1 should be held personally liable for this suit. The learned Subordinate Judge has remarked that the mahant cannot be personally liable because in the first place the money borrowed from the plaintiff was not used by him for his personal purposes, and secondly, because he has not been sued in his personal capacity. Mr. Chatterji points out that this defendant is specifically sued as Jagannath Ramanuj Das, chela of Mangobind Das, shebait marfatdar of Lakshminarayan Jiu Thakur, and that the plaintiff has asked for a decree against both of the defendants and against the shebait and marfatdari interest. If defendant 1 in this suit had been described as the thakur represented by the mahant, it might possibly have been said that the mahant in his personal capacity was not a defendant in the suit, but from the manner in which he has been described, it is clear that he is sued both in his personal capacity and in his capacity of marfatdar. That point is of small importance, since the mahant is certainly a defendant in the case and if it should be found that he took the money for his personal use, he will be liable to a personal decree against him, whatever the plaintiff may have asked for in the plaint.

We have the concurrent findings of the Courts below that this money was taken by defendant 2 as agent of defendant 1 for the purpose of the prosecution of the appeal in the litigation which began in 1924 and that it was applied for that purpose, and further that defendant 1 himself took an active part in the prosecution of that litigation. Therefore if the use of the money by mahant''s authorised agent for the purpose of that litigation was used for the personal purposes of the mahant, he will be personally liable to repay the loan. Mr. Chatterji points out that the learned Munsif has remarked upon an admission of defendant 1 that the math was never in possession of this land, and that the real reason for the suit was that defendant 2 wished to gratify a grudge against the father of Ichhabati Dibya, although defendant 1 had asked defendant 2 not to file the suit or appeal.

The learned Munsif has found that this last statement is untrue, and it appears from the admissions of defendant 1 that this litigation of 1924 was false, instituted merely to injure the opposite party, to satisfy a grudge arising out of a family quarrel and that the allegation that this was the land which belonged to the math had no foundation. These statements may or may not be true, and indeed it appears that some of the property which was in dispute has been acquired by the wife of defendant 1 which may give some ground for suspicion, but Mr. S.C. Chatterji is entitled to ask that full effect shall be given to these admissions of defendant 1, together with the findings of the learned Munsif in connection with them. On these admissions taken with the findings of the learned Munsif which have been affirmed by the learned Subordinate Judge, it would appear that the suit was false, instituted for private family purposes, and the application of the borrowed, money for the furtherance of litigation of this kind must be regarded as use for personal purposes.

There is no doubt that if the mahant had purported to charge the dedicated property for money lent to him without enquiry, and it had been shown that this money had been applied by the mahant to personal indulgence, the property of the math would not have been bound, but the mahant would have been liable to a personal decree against himself. For our own part we see no reason to distinguish between indulgence in false litigation and other forms of vicious indulgence, and as this money was taken by defendant 1 for the furtherance of his private purpose, he must be held to be personally bound by the act of his agent who borrowed the money on his behalf. Mr. Subba Rao on behalf of defendant 1 suggests that nobody but the signatory can be held liable on the hand-note, but this is not a case of signature by an agent for an undisclosed principal. The signatory to the hand-note in the present case is defendant 1 though the actual signature may be given by his authorised agent, defendant 2.

That the agency was authorised and that it was subsequently ratified is perfectly clear from the fact that the mahant himself took an active part in the prosecution of the appeal for which the money was originally obtained. Mr. Subba Rao suggests that the agency of defendant 2 ought not to be recognised on the ground that the mahant himself being a trustee could not delegate his fiduciary duties.

It is not clear what is meant by the use of this English term ''trustee'' in this case. One thing appears to be clear, that the legal title to the property of the math was not vested in defendant 2 and he was not trustee in that sense of the word, nor has it been shown that there was anything in his power of attorney which authorised him to make alienation of the math property. The question is not of importance in the present case as the math property is not bound.

Whether the mahant exceeded his powers in executing the document constituting defendant 2 his authorised agent, or whether he did not, is a question of no importance, since there is no doubt that in his personal capacity the mahant is liable for the debts incurred by his authorised agent on his behalf, incurred for the personal purposes of defendant 1. Mr. Subba Rao further suggests that the rate of interest agreed upon by the defendant is excessive, but this point was not taken in the Courts below, and the interest is not so high as on the face of it to require the application of the provisions of the Usurious Loans Act. To this extent therefore this appeal is allowed, that the decree of the Subordinate Judge will be set aside, and there will be a personal decree against defendant 1 for the amount claimed. The plaintiff is entitled to his costs throughout against defendant 1.

Dhavle, J.

I agree.