Sankaran Nambudiri and Others vs Narayanan Nambudiri and Others

Subramania Iyer, J.—These appeals arise out of a suit to realise money due as per a deed of hypothecation executed by the Illam of the Defendants in favour of the Plaintiffs. A.S. 86/23 is by the Plaintiffs against the decree of the Court below exonerating items 1 and 2 in the schedule to the plaint from liability and A.S. 15/24 is filed by Defendant 2 against the grant of a decree by the Court below in respect of the remaining items. The document sued on is Ex. A of the year 1109. It is a subsequent encumibrance there having been a prior encumbrance upon the properties which was sought to be realised to be realised in O.S. 22/1109 on the file of the Court below.

Exhibit A was in fact executed during the pendency of that suit and the Plaintiffs were impleaded therein as additional Defendants. There was a decree in O.S. 22/1109 in execution of which the properties were sold and purchased by the decree-holder. One detail has here to be mentioned. Exhibit A comprises two categories of properties, (1) properties of the Illom proper and (2) properties of one Chennamkulangara Bhagavathi Devasom. The subject matter of O.S. 22/1109 comprised only the first class of properties. After the auction sale in O.S. 22/09 some of the junior members of the Defendants Illom filed a suit to set the decree as also the document on which it was based aside on the ground that the debt was not binding upon the Illom. That suit ended in a compromise under which the purchaser made over items 1 and 2 to the Illom of the Defendants under the of Ex. I which was of the year 1118. Items (sic) to 46 in the schedule to the plaint are properties coming under the second category and they are the subject matter of A.S.15/24.

The contention urged by the Defendants in the Court below was that those properties belong to the Devaswom and that they were not liable to be secured for a debt which was not binding upon the Devaswom. They contended that the debt was not binding even upon the Illom. Issue No. 3 was framed upon this contention. The Court below recorded a finding against the Defendants and in favour of the Plaintiffs.

The judgment of the learned Judge was read before us and the matter dealt with was argued somewhat at length. The result of the discussion is that there is no evidence in this case on which a Court can confidently find that there has been a dedication of the properties to a diety so as to constitute the diety the owner thereof.

The burden of proving that the properties in the possession of a person or family have been dedicated to a diety by way of trust, is on the person setting up such a case. Such a case was set up by the contesting Defendants and as already stated, there is no evidence on which a Court can find that there has been a dedication. In the result we are compelled to hold that here is a case set up by the Defendants which is not proved.

The decision in - AIR 1920 MAD 235 (A) is applicable to the facts of this case. There it was held that the onus of proof of dedication is on the party alleging it and that notwithstanding the fact that certain properties have been registered in the revenue records in the name of the Devaswom, that separate documents are taken as regards them, that separate accounts have been maintained that the family is described as Coralan of the Devaswom, all these do not amount to proof of dedication.

The only evidence attempted in this case consists of Exs. IV to XXVI which are pattom chits appertaining to these properties which show that they are described as the properties of the Devaswom. Mere description of properties as belonging to a Devaswom will not, as has been held in - 20 Cochin 235 (A) constitute proof of dedication. It may merely mean that the owner for his own convenience of management may have ear-marked certain properties for particular purpose, even so for the purpose of conducting the worship in a temple erected and maintained by him. In the absence of evidence as to dedication, it has to be taken that the temple as also the properties which are described as belonging to it form part of the properties of the illom which can be dealt with for the purpose of illom, whether they relate to the temple or not.

In a case like that it is not correct to talk of the necessity of the illom and the necessity of the temple as distinct because, as already, stated, the Devaswom is but Anr. activity of the illom owing it, and the purpose of the illom is therefore the purpose of air its activities each of which cannot have a separate existence as an entity independent of the other. It follows that if the debt which led to the execution of Ex. A is a debt binding upon the illom then, its being secured by a charge upon these properties by Ex. A is well within the competence of the executants of it. Though it was contended in the Court below that the debt which led to the execution of Ex. A was not binding upon the illom, that Court recorded a finding against the Defendants on that question and that finding is not very seriously challenged before us. The only ground on which it was contended that the debt is not binding upon the illom is that the debt arose out of a kuri which was started by the members of the illom for illom purposes. It is too late in the day to contend that the liability under taken by the starting of a kuri by all the adult members is not binding upon the family (illom) merely because there happened to be among the members One or a few minors. The finding recorded by the Court below that the debt is binding upon the illom has therefore to be confirmed.

The result is that the conclusion reached by the Court below that Ex. A is binding upon the illiom of the Defendants and upon the properties, items 3 to 46 of the schedule to the plaint is correct and the appeal brought by Defendant 2 challenging that finding should be dismissed with costs.

A. S. 86/1123: This appeal, as already stated, is brought by the Plaintiffs and the conclusion reached by the Court below exonerating items 1 and 2 from liability is challenged. These items were sold in execution of a decree on a prior encumbrance in O.S. 22/1109 to which suit the present Plaintiffs were, as already stated, impleaded as additional Defendants. The result of this auction sale was to extinguish every interest in that property subsequent to that to enforce which the suit was brought and a decree given. The interest that the Plaintiffs had over the property as subsequent encumbrancers was also extinguished at the time of the sale and the purchaser-decree-holder held the property free from all encumbrances including that held by the Plaintiffs.

It is contended on behalf of the Plaintiffs that the consequence of the mortgagor''s illom having obtained title to these items from the purchaser under Ex. I is to make the liability fasten again upon items 1 and 2. Reliance is placed upon the decision of the Madras High Court reported in - ''Sanaga pally Lakshmayya v. Intoory Bolla Reddy'' AIR 1926 Mad 385 (B) as also in - ''Manjappa Roi v. Krishnayya'' AIR 1929 Mad 113 (C) - A.V.A. Audinatha Ayyengar Vs. S.S. Bharathi and Others, and - Ramanathan Chettiar Vs. Audinatha Ayyangar and Others,

The first of the cases is in point. What happened there was that for arrears of land revenue due on certain mortgaged properties, default having been committed in payment, there was a sale by auction under the provisions of the Revenue Recovery Act. The properties were sold and a stranger purchased them. From the stranger-purchaser the son of the mortgagor who was a Hindu purchased. After such purchase the charge created by the father over the property was sought to be enforced. The question arose as to whether that charge having been extinguished by the auction sale for arrears of revenue and the purchaser thereat having obtained title free from all encumbrances, the subsequent purchase by the mortgagor''s son who was also liable to pay the debt of the father would have the consequence of enabling the mortgagee to realise the money from out of the properties. Their Lordships held that the charge would re-fasten on the properties which would continue to be answerable for repayment of the debt which was secured on it.

The principle of that decision is this. The mortgagor was bound in law to pay the public revenue. If he is in arrear it is a fault on his part. The sale that was occasioned on account of such default was one brought about by him. It is on account of such a sale that the encumbrancer lost his security which was afforded to him by the property. If the property was in the hands of the stranger-purchaser, the encumbrance stood extinguished but when once the mortgagor or some person claiming under him and or subject to the obligations of the mortgage, gets back the property, then the charge will fasten upon the property as otherwise it would be permitting the person to take advantage of his own wrong or default which can never be done.

Here also the Defendants were under an obligation, apart from any statutory provision, to discharge the prior encumbrance. In this particular case the obligation is all the more because the subsequent encumbrance was executed during the pendency of the suit to enforce an earlier one and therefore bad for ''lis pendens'' and the title off the mortgagee thus executed will only be subject to the result of the litigation pending which it was executed. The obligation of the Defendants-mortgagors is all the greater under these circumstances. If they did not discharge that obligation and occasioned the execution of the decree culminating in the court auction sale, it is their default and if any item of property subject to the subsequent mortgage goes back to them, the mortgage gets fastened upon the properties as otherwise it would be allowing the Defendants to take advantages of their default which is obnoxious to the law and which will never be permitted by it.

The other decisions of the Madras High Court are also in favour of this view. Indeed, learned Counsel for the Respondent has not been able to place before us any decision to the contrary.

Learned Counsel for the Respondent, however, contended that under the terms of Ex. I the right obtained by the Defendants is one that is defeasible on a certain event which not having happened yet, we do not consider its effect should it happen. As at present, therefore, the illom has got full rights over items 1 and 2.

The result is that the decree of the Court below exonerating items 1 and 2 from liability cannot be supported and the appeal filed by the Plaintiffs (A.S. 86/23) should be allowed with costs.