Judgement

Appeal (No. 54 of 1924) from a decree of the High Court (November 8, 1922) varying a decree of the Subordinate Judge of South Kanara.

The appellant, in his capacity of head of the Admar Math, instituted a suit against the respondent, as representing the Sirur Math, to recover money borrowed by the respondents deceased predecessor in the office of head of the latter math.

The money had been borrowed towards the expenses of a periodic festival, which by ancient usage included the feeding of all Brahman pilgrims at a temple connected with the math, and for rebuilding the dining hall.

The facts appear fully from the judgment of the Judicial Committee.

Law. Rep. 54 Ind. App. 228 ( 1926- 1927) Vibhudapriya Thirtha Swamiar V. Lakshmindra Thirtha Swamiar 82

The Subordinate Judge held that the respondents math was liable, and made a decree accordingly.

An appeal to the High Court was allowed, and a decree made dismissing the suit as against the respondent representing the Sirur Math, and directing that the suit amount should be recovered from the personal assets (if any) of the late head of that math in the hands of the respondent.

Krishnan J. said that before the borrowing could be justified it must be shown that the late head was under a legal obligation to incur expenditure in the manner and to the extent which he did ; in the opinion of the learned judge that had not been shown.

Ramesam J. referred to the great increase during recent times in the feeding charges in connection with the Pariyaya ; he considered that, as stated in the judgment of the Board in Palaniappa Chetty v. Deivasikamony Pandara (L. R. 44 I. A. 147.), it would be a misapplication of the word " custom " to say that the maths were bound by custom to feed every Brahman who came to the Pariyaya. He considered that the head of a math could bind his successor only for justifiable necessity.

1927. Feb. 4, 7. Sir George Lowndes K.C. and Narasimham for the appellant. The debt is binding on the math. The true test is that laid down in Sammantha Pandara v. Sellappa Chetti (( 1879) I. L. R. 2

M. 175,179.), in a passage cited by the Board with approval in Vidya Varuthi Thirtha v. Balusami Ayyar (( 1921) L. R. 48 I. A. 302, 315, 316.)—namely, was the debt truly contracted for the purposes of the math? The High Court wrongly applied the test of legal necessity applicable to the validity of an alienation of math property. The feeding of pilgrims was part of the duties for which the deceased head was responsible according to the ancient usage of the math. The expense incurred in connection with the festival was in the discretion of the head, subject to his acting reasonably. It is uncontradicted that the head was economical, and that the income of the math and the savings were not sufficient to meet this periodic expenditure, borrowing having been resorted to by previous heads. Even if necessity is the test, there was necessity having regard to the duties to be performed. In Niladri Sahu v. Chaturbhuj Das (L. R. 53 I. A. 253.) the building of accommodation for visitors to a math was held to be a necessity ; so here the rebuilding of the dining hall was a necessity. The appellant is willing that the loan should be repaid out of the math income, as in that case. The absence of a charge upon the income of the math does not preclude the appellant from recovering Srimath Daivasikamani v. Noor Mahomed Routhan (( 1907) I. L. R. 31 M. 47.); Lakshmindrathirtha v. Raghavendra Rao (( 1920) I. L. R. 43 M. 795.); Sundaresan Chettiar v. Viswanada Pandara. (( 1922) I. L. R. 45 M. 703.)

Dunne K.C. and Dube for the respondent. A series of decisions of the Board show that no charge on, or alienation of, math property is effective unless it is shown to be unavoidable necessity Murugesam Pillai v. Manickavasaka Pandara (( 1917) L. R. 44 I. A. 98.) ; Palaniappa Chetty v. Deivasikamony Pandara. (L. R. 44 I. A. 147.) The test to be applied in the case of borrowing is the same. The passage in