Judgement

Appeal from a judgment and decree of the High Court (January 18, 1910) reversing a judgment and decree of the Subordinate Judge of Mayavaram (November 6, 1907).

The suit was instituted in October, 1906, by the appellant upon a hypothecation bond dated November 4, 1897, granted by the pandara of a math over part of its property. The defendants were the senior pandara who had executed the hypothecation bond sued on, the junior pandara in whose favour the first defendant had by deed surrendered his rights, and other persons asserting claims upon the math property. Upon the death of the first defendant in November, 1906, the seventh respondent, who claimed to succeed as senior pandara, was added as seventh defendant. The second and seventh defendants filed written statements denying that the debt was incurred for a necessary expense of the math, or that there was any necessity in the circumstances of. the math for incurring the debt. The facts appear from the judgment of their Lordships.

The Subordinate Judge found upon the evidence, and from the failure to produce the books of the math, that the debt was incurred for the purposes of the litigation in 1881, and had been recognized as a debt binding upon the institution. He said that in his view a loan taken for litigation for the purpose of asserting and vindicating the rights of the math came within the exceptional circumstances which would render it binding upon the institution. The decision in Saminatha Pandaram

v. Sellappa Chetti (( 1879) I. L. R. 2 Madr. 175.) was authority for so holding, and to that extent had not been dissented from in Kashim Saiba v. Suhhindra Thirihaswami. (( 1891) I. L. R. 18 Madr. 359.) The debt might be con sidered as incurred for the maintenance of the math. He made a decree in the appellants favour.

Upon appeal the High Court (Sir Charles Arnold White C.J. and Munro J.) reversed the decision. The learned judges upon an examination of the evidence considered that the surplus income of the math was sufficient for the purposes of the litigation and that necessity had not been proved. The plaintiffs father and the plaintiff had been managers of a temple connected with the math, and it was conceivable that the pandaras in dealing with them had been careless of the interests of the institution.

1916. Nov. 14, 16. Sir R. Finlay, K.C., De Gruyther, K.C., and OGorman, for the appellant. The evidence establishes that the loan was made for the purposes of the litigation in which the math was involved. From the whole of the circumstances it should be inferred that the debt was necessarily incurred in the interests of the institution. Having regard to the lapse of time since the original loan, less specific evidence of necessity was required than in the case of a debt recently incurred Banga Chandra Dhur Biswas v. Jagat Kishore Chowdhuri. (( 1916) L. R. 43 Ind. Ap. 249.)

Sir Erle Richards, K.C., and Kenworthy Brown, for the seventh respondent. The onus was upon the plaintiff to prove strictly that there was necessity Abhiram Goswami v, Shyama Char an Nandi (( 1909) L. R. 36 Ind. Ap. 148.); as in the case of an alienation by a manager for a minor Hunooman Persauds Case. (( 1856) 6 Moo. Ind. Ap. 393.) The evidence did not prove necessity. The judgment of the Subordinate Judge applied the wrong test, namely, whether the debt was incurred for the purposes of the institution. For the reasons given by the High Court little weight attaches to the recognition of the debt by subsequent pandaras. This respondent was claiming to succeed to the headship adversely to the first and second respondents. There was no obligation upon the respondents to produce the books of the math.

1917. Jan. 23. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal from a decree of the High Court of Judicature at Madras, dated January 18, 1910, which reversed a decree of the Court of the Subordinate Judge of Mayavaram, dated November 6, 1907.

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