Judgement

Appeal (No. 154 of 1924) from a decree of the High Court (March 17, 1923) affirming a judgment of the Subordinate Judge of Cuttack.

The first respondent, the mahant of a math, executed on November 6, 1906, a mortgage to the appellant of certain properties of the math to secure a loan of Rs. 25,000 and interest at 1 per cent, per mensem ; he also covenanted by the deed to pay personally the sum due.

The present suit was brought by the appellant to enforce the mortgage. The first defendant (the mahant), by his written statement, pleaded that the money was not borrowed for necessity or for the benefit of the thakurs, and that the suit was bad for want of necessary parties, as the thakurs had not been joined.

The Subordinate Judge held that the thakurs were necessary parties in order to enforce the mortgage against the property; he was also of opinion that the money was not borrowed for legal necessity. He accordingly made only a personal decree against the respondents.

The High Court (Jwala Prasad and Foster JJ.) held that the thakurs were not necessary parties, but they agreed with the finding of the trial judge as to the absence of legal necessity. The decree of the trial judge was therefore affirmed.

The facts of the case and the grounds of the decisions in India appear fully from the judgment of the Judicial Committee.

1926. May 20. De Gruyther K.C. and E. B. Raikes for the appellant.

Wallach for the respondents.

[The arguments were mainly as to the facts, but reference was made, on behalf of the appellant, to Prosunno Kumari Debya v. Golab Chand (( 1875) L. R. 2 I. A. 145.) ; Konwur Doorganath Roy v. Ram Chunder Sen (( 1876) L. R. 4 I. A. 52.); Murugesam Pillai v. Manickavasaka Pillai. (( 1917) I. L. R. 44 I. A. 98.)]

July 6. The judgment of their Lordships was delivered by

LORD ATKINSON. This is an appeal from a decree of the High Court of Judicature at Patna, dated March 17, 1923, dismissing an appeal from a decree of the Subordinate Judge of Cuttack, dated February 28, 1922, who in a suit for sale on a mortgage had passed a money decree only against defendant No. 1, but had, in other respects, dismissed the plaintiffs claim.

The defendant, the mortgagor, is the mahant of the math of a thakur or deity of the Vaishnavites called Sri Jagannath Mahaprobhu at Puri. It includes a temple with idols in it. The defendant, with, as it is alleged, the view of increasing the income of the math, built as an addition to it a lodging house, where rajas and other rich devotees visiting the math might obtain during their visit comfortable lodgings, and built in addition a large hall where food might be supplied to those devotees who might visit the math and worship at it.

The revenue of the math, though sufficient to meet the ordinary expenses of the worship in it, was insufficient to meet in addition the cost of the construction, maintenance, and management of these new buildings. The defendant was accordingly, from the year 1891 downwards, obliged to borrow from time to time from moneylenders on notes of hand, setting forth the purpose of the loans, various sums of money, bearing interest at Rs. 2 per mensem or more. The actual sum expended on the construction of these pakka buildings, as they were styled, only amounted to Rs. 9337, so that the outlay could not be considered to have been of an extravagant character. Owing, however, to the very high rate of interest charged by the lenders, the defendants indebtedness to these latter amounted by November, 1906, to the large sum of Rs. 25,000. To meet this indebtedness, the defendant, the mahant, on November 6, 1906, borrowed from the plaintiff the sum of Rs. 25,000, bearing interest at a rate only equal to one-half the rate he had been paying on the loans obtained from moneylenders—namely, 1 per cent, per mensem, and in order to secure the repayment of this loan and the interest accruing upon it, he gave to the plaintiff a mortgage of certain properties which were at the time, a