Decided on June 04,1935



John Wallis, J. - (1.) IN this case the right of a judgment creditor to bring the properties of a mutt to sale in execution of a money-decree against the Mahanth of the mutt has for more than a quarter of a century been the subject of incessant litigation and a multiplicity of suits in the Courts below, and now comes before this Board for the first time. IN 1898 the Mahanth of the Suja Mutt died and was succeeded by Siaram Das, the judgment-debtor in this case. A few months later in January 1899 the Mahanth of the neighbouring Sersia Mutt, as next friend of his nephew, Mahabir Das, who is said to have been six years old, instituted a suit in the Court of the Subordinate Judge of Monghyr against Siaram Das to establish the minor's right to succeed to the office of Mahanth of the Suja Mutt, and according to his own statement spent a sum far in excess of Rs. 31,000 in prosecuting the suit. One of his first steps after instituting the suit was to apply for the appointment of a receiver, who on his appointment took possession of the mutt properties, with the result that the defendant Siaram Das was left without any funds wherewith to defend the suit. He then applied to a money-lender Baijnath Goenka (the father of the present plaintiff Kedar Nath Goenka) who undertook to advance him a sum of Rs. 20,000 for the purposes of the litigation in consideration of his executing an ekrarnama undertaking to pay one lakh of rupees and to give a lien for that sum on the mutt properties. Not content with this, he subsequently obtained a further ekrarnama giving him a zari-peshgi lease of certain mutt properties for fifteen years in lieu of interest on the above sum.
(2.) THE Subordinate Judge dismissed the minor's suit on the ground that he had no title to succeed to the mutt, and also recorded a finding that the defendant was in. the same case. From this decree both parties appealed to the High Court at Calcutta, While the appeals were pending, the minor plaintiff by his next friend Surjao Das, Mahanth of the Sersia Mutt, and Siaram Das, the defendant, presented a petition to the High Court, stating that the parties had propromised the suit on the terms that they were both to be Mahanths and to be entitled to and in possession of the mutt properties in equal shares, and on the further terms that Surajao Das was to have a first charge on the mutt properties for Rs. 31,000 which he had spent in prosecuting the suit on the plaintiff's behalf, and that, as the Suja and Sersia Mutts had a common founder and the Suja Mutt had been in the habit of subsidising the Sersia Mutt, both parties were to give the Sersia Mutt a lease of the Suja Mutt properties, yielding a net income of Rs. 1,500. About this compromise it is sufficient to say that on this petition the High Court passed an order sanctioning the compromise as beneficial to the minor plaintiff, and ordered and decreed that the parties should abide by it. On November 30, 1903, Baijnath Goenka filed in the same Court, O. S. 500 of 1903, the suit out of which the present litigation has arisen to recover Rs. 1,17,607-3-0 on the ekrarnamas mentioned above, impleading the two Mahanths Siaram Das and Mahabir Das as defendants Nos. 1 and 2. Of this sum Rs. 87,042 was for interest, and in lieu of interest on this interest he claimed under the zaripeshgi lease possession and enjoyment of the rents and profits of the mutt properties mentioned in the second ekrarnama for fifteen years, and to be paid the principal on the expiration of the lease. The balance of Rs, 30,565 he claimed to recover by sale of the mutt properties on which he had a lien under the first ekrarnama, and also from the person and properties of defendant No.1. As was only to be expected, both the Subordinate Judge and the High Court on appeal held these ekrarnamas to be grossly unconscionable and void. As regards the Rs. 14,590-4-6, which the plaintiff was found to have advanced under the void ekrarnamas, both Courts held that not having intended to act gratuitously, he was entitled to repayment of that sum with reasonable compensation. The High Court reduced the rate of interest awarded by the lower Court, and the plaintiff obtained a decree for Rs. 22,073 against Siaram,, defendant No.1, and the suit was dismissed as regards Mahabir, defendant No.2. In execution of this decree Baijnath Goenka, the decree-holder, brought to sale Siaram's eight annas share in the mutt properties, and at the Court-sale held on January 18 and 21, 1908, himself became the purchaser of the properties which are the subject of the present suit.
(3.) ON the application of Siaram, the judgment-debtor, the Subordinate Judge set aside the sale as not in accordance with the provisions of the Transfer of Property Act as regards' the sale of mortgage property. There was an appeal to the High Court which after referring the question to a full bench on February 4, 1913, reversed the Subordinate Judge's order setting aside the Court-sale, and remanded the case to the lower Court to proceed with the execution of the decree. While this appeal to the High Court was pending, Siaram, the judgment debtor, had been removed in 1910 from the office of Mahanth and Mahabir appointed sole Mahanth by a decree in a suit instituted by three chelas of the- mutt for the removal of both Mahanths, and confirmed by the High Court on appeal in 1912. The ground of removal was not personal misconduct but mismanagement. The relations of the two Mahanths were then friendly, and Siaram, who may not have been sorry to be relieved of office in view of his embarrassments, showed so little interest in defending the suit that the question whether the suit was collusive was considered by both Courts but was held not to be proved.;

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