Judgement

Appeal (No.10 of 1942) from a decree of the High Court, (September 16, 1938), which reversed a decree of the Court of the Subordinate Judge at Allahabad, (August 18, 1934), and dismissed the plaintiffs suit with costs.

The following facts are taken from the judgment of the Judicial Committee The plaintiff—the appellant before the Board—was a moneylender, and the appeal arose out of a suit instituted by him as a mortgagee of the suit property on a mortgage, dated December 4, 1926, executed by defendants Nos. 1 to 3—respondents Nos. 1 to 3 in this appeal. Those defendants did not contest the suit. In the plaint Janki Prasad, defendant No. 1, was described as "for self and as" the Mutwalli, manager and Karkun of Thakurdwara Sri "Behariji Mahraj, installed in the temple situate in mohalla " Sarai Mir Khan, City Allahabad." As that description did not say whether the deity, Sri Behariji Mahraj—hereinafter referred to as the deity or the idol—was or was not a party to the suit, and whether the plaintiff wanted a decree against Sri Behariji Mahraj, defendant No, 4, now respondent No. 4, Sri Behariji, was made a party through the receiver appointed by the District Judge in suit No. 14 of 1932, a suit which had been filed by the plaintiffs in Suit No. 85 of 1927, under s. 92 of the Code of Civil Procedure to have Janki Prasad (respondent No. 1) and Gopi Nath removed from the Mutwalliship of the idol. [Attention will be drawn to these two suits later.] The original plaint was subsequently amended by the addition of paragraph (7) (a) which was as follows—(7) (a) "That Janki Prasad, defendant No.1, did not in the mortgage "deed sued on, write himself as the mutwalli,” manager and karkun of the Thakurdwara of Sri Behariji Mahraj installed in the temple situate in mohalla Sarai Mir Khan, a then as the amount of consideration of the mortgage d was paid for the protection of the property of Sri "Behariji Mahraj, defendant No. 4, and as defendant No. 1 is the ‘mutwalli,’ manager and karkun of Sri Behariji Mahraj it is also binding on the Thakurdwara of Sri Behariji Mahraj, installed in the temple situate in mohalla Sarai Mir Khan, city Allahabad, Sri Behariji Mahraj has been made a party to the suit.” Later, on February 22, 1934, the plaint was further amended, alleging that defendants Nos. 1 to 3 (respondents Nos. 1 to 3) were the owners of the property in suit. A written statement was filed by the receiver on behalf of the idol. Therein it was stated that Janki Prasad (respondent No. 1) could not and did not properly safeguard the interests of the idol; that the mortgage was not binding on the idol as it was executed by Janki Prasad as the owner of the property; that, assuming there was a debt binding on the idol, Janki Prasad and other trustees were bound to pay it out of the income of the trust property, which was sufficient to pay off the debt; and that the property of the idol was not in danger of being sold nor could it be sold in execution.

The main question in this appeal was whether, on the facts herein set forth, the appellant was entitled to a mortgage decree which would be binding on the idol, respondent No. 4. The facts giving rise to this litigation were as follows In 1865, one Jagannath died childless, leaving his widow Lalti Bibi, and two items of properties, referred to in the suit as Nos. 14 and 15. Property No. 14 was the subject-matter of the suit mortgage, it consisted of four shops in Chowk Allahabad. In 1894 Lalti Bibi applied to the Allahabad Municipality for permission to reconstruct item No. 15 as a temple. The permission was granted. On July 15, 1895, she mortgaged property No. 14 for Rs.3,000 to reconstruct the temple. On July 7, 1903, Lalti Bibi executed a will" by which she dedicated certain properties, including property No. 14, to the idol, Sri Behariji Mahraj, and appointed executors and trustees for the purpose of carrying out the objects mentioned in the "will." The "will" recited that she had been