1. His Lordship after stating the facts, which are summarised above, continued as follows : On behalf of the plaintiff his learned advocate has argued two points. It is contended, first, that the Leva Satpanthi Samaj had authorised the loan resulting in the passing of the promissory note and of the agreement to execute the mortgage, and it is argued next that the promissory note and the agreement to execute the mortgage were justified by legal necessity. Before dealing with these two points it may be convenient to set out the conclusions to which the learned trial Judge has come. He said that it was clear that Shree Satpanthi Sansthan was treated as belonging to Leva Satpanthi community, that he was convinced that Shree Satpanthi Sansthan, Faizpur, belonged to Leva Satpanthi Samaj or Leva Satpanthi community and that other non-Leva Patidar Satpanthis had no right over it. He also concluded that Shree Satpanthi Sansthan was not a Devasthan but that the same was property belonging to Leva Patidar Satpanthi community. He next said that he was convinced that exhibit 47 which is a proceeding of the general meeting held on October 15, 1924, was a concocted document; and he came to the conclusion that Dharma had no authority to pass the promissory note on behalf of the Sansthan as there was no sanction for incurring the expenses by the plaintiff for the two suits by the Leva Satpanthi community and that a large portion of the amount was barred by time. In effect he held that the promissory note in suit, was not valid and that the agreement to execute the mortgage was also not valid.
2. In order to understand the first question as to whether the Leva Satpanthi community had sanctioned the loan for the two suits filed in 1924, it will be necessary once again to refer to the proceedings of that meeting. It may be noted that although on that date a meeting of the Mahamandal was held, as also a general meeting the proceedings of the general meeting were not recorded in the proceeding book used for the meetings of the Mahamandal. It was said, therefore, as one of the grounds, that the document exhibit 47 was a concoction. The learned Judge has given several reasons for saying that that document was a concoction and those grounds I shall examine in a moment. After discussing the grounds and relevant evidence his Lordship proceeded :
3. The question whether exhibit 47 is a concoction or not is to be decided by some indication contained in the document itself and, if there is any, as we understand the proceedings and the circumstances of the case, we think that this ground is not certainly justified. In our view, therefore, the learned Judge was wrong in holding that exhibit 47 which records the proceedings of the general meeting of October 15, 1924, was a concocted document.
4. With regard to the proceedings of the Mahamandal there is no dispute whatever. There are four resolutions passed by the Mahamandal, the first of which was in 1924, followed by another in 1926, the third resolution being in 1928 and the last resolution being in 1930. According to the plaintiff's evidence deceased Dharma used to attend the meetings and also according to his evidence the deceased Dharma was present at the meeting of the Mahamandal which was held on April 16, 1930. If, therefore, both at the meetings of the Mahamandal and of the several villages professing the Satpanthi faith they decided to file two suits in order to vindicate their position, it would be difficult to see why it should be regarded that the expenses in connection with the two suits were not legitimate. It may be that they in the first instance looked to the persons professing the faith for voluntary subscriptions from out of which the expenses were to be met. They may well have thought that the institution need not be burdened with that expenditure. In point of fact the first resolution was of 1924 and the last was in 1930. It was only in 1930 on, receipt of the letter from Mr. Pradhan asking for a sum of Rs. 2,000 when apparently the subscriptions were not forthcoming as expected that the Maharaandal considered that in the absence of any subscripions it would be quite legitimate to ask the Sansthan to bear the expenses of the litigation. [After discussing evidence his Lordship proceeded :]
5. In our view, therefore, the expenditure which was decided upon at the general meeting of the Satpanthi community and the expenditure which was decided upon at the meeting of the Mahamandal was necessary and legitimate.
6. Mr. Jahagirdar for the defendant has laid considerable stress upon the letter executed by Dharma on June 28, 1930. He contends that that letter contains a number of false recitals suggesting that Dharma was under the influence of the plaintiff and he was, therefore, made to execute that document. It appears from the evidence that Dharma Guru Barasu attained majority in 1919. It also appears from the evidence that he had studied up to the 6th standard Marathi. It also appears from the evidence of the plaintiff that he had studied English. It appears from the proceedings (exhibit 46) that in 1923 he had himself written to the President of the Mahamandal asking for a sum of Its. 100 in connection with the furniture for the library of the Mandal, so that it is hard to believe that Dharma was ignorant of the proceedings which were being taken from time to time and which proceedings had been initially started in 1924. Shortly after the letter, in 1932 he was appointed Vice-president of the Mahamandal and under those circumstances it is not possible to accept the contention raised on behalf of the defendant that Dharma was a tool in the hands of the plaintiff and was made to pass a letter in the form in which it was passed by him. It must be taken that he understood the position as it was presented to him.. He was himself the Archak and Vahivatdar of the institution. The institution cannot exist apart from its followers, and although in 1923 or even earlier the institution commanded large immoveable property, the members of the institution had to give by way of contribution a part of their income so that the institution had to depend upon its members for its existence. If that was so, it was quite natural for the Archak and Vahivatdar as Dharma was to agree in the event of failure to collect the amount by subscriptions that the institution should bear the expenditure which had been already incurred in connection with the suits and the appeals. The fact that that was so, is also made clear by exhibit 51 which shows that he himself had acknowledged the debt twice, first in Samvat Year 1990 and again in Samvat Year 1992, which correspond to the years 1934 and 1936 respectively. It was this debt which ultimately led to the passing of the promissory note in 1937.
7. The learned Judge, however, negatived the plaintiff's claim on another ground. In his view at the date when the promissory note was passed the plaintiff's claim was out of time. With regard to this finding it is to be noted that this particular line of attack has not been taken by the defendant in his written statement. There was no issue raised at the trial; and it would seem, therefore, that this point was made in the course of the arguments and under those circumstances seems to have prevailed with the learned Judge. However, in our view that finding is not correct. In 1930 by his letter Dharma acknowledged the debt. The expenditure was incurred in the khata, exhibit 51. It appears that he acknowledged the debt also in 1934 and in 1936. Under those circumstances it cannot be said that at the date when the promissory note was passed the debt was out of time. If it was the defendant's case that the debt was out of time and that the Archak and Vahivatdar had not acknowledged the debt, then he should have taken up that contention in the written statement, and an issue would have been framed and a finding given. On the materials as they now stand, we are not satisfied that at the date when the promissory note was passed the debt was out of time. The promissory note was passed in 1937 and the agreement to execute the mortgage was passed in 1938 and the suit was filed in 1940. In our view, therefore, the debt is not out of time and it cannot be held that the plaintiff's claim was barred by limitation.
8. The second question argued is that inasmuch as the Sansthan accepted the liability of the debt in 1937 by execution of the promissory note and as Dharma was only Archaic and Vahivatdar of the institution, the plaintiff's claim is not in order. The learned Judge has found that Shree Satpanthi Sansthan is not a Devasthan. According to him it is the property belonging to the Leva Patidar Satpanthi community. According to issue No. 3, which is, 'Is it proved that the said agreement is for legal necessity of the suit Sansthan? ', it is difficult to see how the Sansthan could be regarded as the property of the Leva Patidar Satpanthi community. The Sansthan is a religious institution which owns property consisting of lands and houses. The Leva Satpanthi Samaj owns a dharmashala. It also owns a vachanalaya or a library. The members of the institution pay a part of their income to the Sansthan and a part of the property is acquired out of the income of the property of the Sansthan. There is a kalasha which is worshipped by members or followers of the Satpanthi faith. That being so, we think that it has all the attributes of a Sansthan or a religious institution. It may be that there is no God in the temple. That is the evidence of the plaintiff. But the plaintiff's evidence is that there is a kalasha which is worshipped on festivals. If that is so, the dhar-mashala is the place where the worship is offered and so in our view it is wrong to say that Shree Satpanthi Sansthan is not a Devasthan or is not a religious institution. The position, therefore, is that the present Archak and Vahivatdar is in the same position as a shebait. The suit is filed against the defendant in his capacity as the Archak and Vahivatdar of Shree Satpanthi Sansthan, Faizpur. If that be so, the only question is whether this was a debt binding upon the institution. Mr. Jahagirdar for the defendant has strongly relied upon the recitals contained in the Samadhanpatra of the year 1907. It is, therefore, necessary to turn to the contents of that document. The Samadhanpatra came to be executed on February 17, 1907, during the time when the former Archak, Dharma Guru, was a minor. The first Archak known to these proceedings was Barasu who died in 1904. It was after his death that Dharma appears to have succeeded to the office of Archak and Vahivatdar of the institution. It seems that until 1907 during the time that he was a minor, the management of the Sansthan property was carried on by seven persons including the father of the plaintiff, Badhu Nana Mahajan. On that date the management was made over to five persons. Out of these five persons to whom the management was made over, Lalu, Jairam, Jaisingh and Nathu appear. according to the evidence, to be non-Leva Patidars. That is why the learned advocate for the defendant has contended that persons other than Leva Patidars were interested in the institution. The important part of that document is as follows:
Hence from today you act as the guardian of the said minor and we have from today given in your vahivat the said Sansthan and the immoveable property of the same as detailed below. You should therefore make vahivat of the same in the same manner as continued since before. We have no objection now regarding the same. You or any person in the Jamat or the Archak of the Sansthan has no authority (right) to raise loans (incur debts) on the said Sansthan and the immove-able property of the Sansthan ; nor have you (Jamat or Archak) any right to mortgage, sell or gift away the said property in any way whatsoever. Since time immemorial, the Archak is being appointed with the consent (approval) of the Jamat and that the Jamat is competent to remove the Archak or to appoint any other Archak in his place in case the Archak does not behave properly or does not keep proper management.
9. This document appears to have been written by the plaintiff. The Samadhan-patra mentions the properties of the -Sansthan 'and is signed by a number of persons. It is argued that the Samadhan-patra evidences a written record of the usage or the custom as regards the powers of the Archak and Vahivatdar, and it is contended that having regard to the recitals which I have quoted above, Dharma was not competent to accept the debt as binding upon the institution. It is not possible to accept as correct this contention. It is true that the powers of an Archak and Vahivatdar seem to be limited as in reality the powers of every Archak and Vahivatdar are. The document only shows that the Archak, the managers and the persons in the Jamat had their rights limited in the manner mentioned in the document. It does not however follow that because the rights or the powers of the Archak were limited, therefore, the Archak and Vahivatdar who is in the same position as a shebait has no power which under the principles of Hindu law a shebait has. In Mayne on Hindu Law and Usage, 10th edition, page 929, this is what is stated as regards the powers of a shebait:
The possession and management of the property of a religious endowment belong to the manager, dharmakarta or shebait and this carries with it the right to bring whatever suits are necessary for the protection of the property. He is bound to do whatever is necessary for the benefit or preservation of the properties of the idol. It is, therefore, competent for the manager, shebait or Dharmakarta to incur debts and borrow money for the proper expenses of keeping up the religious worship, repairing the temples, or other possessions of the idols, instituting or defending hostile litigious attacks and to prevent the endowed properties from being brought to sale in execution of decrees binding upon the institution. The power however to incur such debts must be measured by the existing necessity for incurring them. The authority of the manager of an idol's estate would appear to be in this respect analogous to that of the manager for an infant heir whose power to alienate can only be exercised rightly in a case of need or for the benefit of the estate.
10. Then at page 980 occurs the following statement of the law:
No indication is to be found in any of the cases as to what is in this connection the precise nature of the things to be included under the description, 'benefit of the estate.' The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things are held to be benefits. But a manager would not be justified in selling debuttor land for the purpose of investing the price of it so as to bring in more income.
11. The statement of the law which I have quoted above and which appears at page 929 of Mayne's Hindu Law is based upon a decision of their Lordships of the Privy Council reported in Prosunno Kumari Debya v. Golab C'hand Baboo of the report this is what their Lordships say:
But, notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is in their Lordships' opinion, competent for the shebait of property dedicated to the worship of an idol, in the capacity as shebait and manager of the estate, to incur debts and borrow money for the proper expenses of keeping up the religious worship, repairing the temples or other possessions of the idol, defending hostile litigious attacks, and other like objects. The power, however, to incur such debts must be measured by the existing necessity for incurring them.
12. We think, with respect, that the present case does fall within the principles laid down by their Lordships of the Privy Council. It appears that the plaintiff and others were faced with a very serious situation in 1923 when they were excommunicated, their fault being that they were members of the Satpanthi cult. The history of the cult was that it was founded by a Mahommedan saint. A section of the Leva Patidar community took the view that the Leva Patidars who professed the Satpanthi faith were outside the pale of Hinduism, This would suggest that they were not Hindus which by birth they were. It is not, therefore, surprising that in 1924. the plaintiff and persons agreeing with him took up the challenge by filing suits against members of the Leva Patidar community. The fact that they failed is another matter. Rut even then it cannot be said that they entirely failed in the object which they had in view. This will appear from a persual of the judgment of this Court reported in Devchand v. Ghanashyam : AIR1935Bom361 . The two plaintiffs had filed suits claiming damages for excommunication. According to the view of the learned trial Judge the question which the plaintiffs sought to agitate was a caste question and this Court also concurred in that view. The learned trial Judge had, however, taken the view that the Satpanthi cult was abhorrent to the feelings of the Leva Patidar caste as a whole and this Court said that it was not for the Courts to decide that question. In this Court when the case for the plaintiff was presented, it was pointed out that it was not for cash that the plaintiffs were fighting but that the plaintiffs were fighting for the vindication of their position as Hindus. If that was so, it is difficult to see how the expenditure which the plaintiff and others decided upon, and the havala which was later on taken from the institution were not justified. It is said that the Satpanthi faith had among its adherents not merely members of the Leva Satpanthi Samaj but also some others. That may be so, but the members of the Leva Satpanthi Samaj formed, at any rate, a considerable part among the followers of the institution. If it was a correct view that this faith was outside the pale of Hinduism, it means that if these people decided to remain as followers of that faith, they would in fact cease to be Hindus. It is not unnatural, therefore, that they had to challenge that position, and it seems that to-some extent they did succeed in that attempt. I have said that the institution must depend naturally upon its members for its existence. If these persons had to leave the Satpanthi faith, the institution could no longer survive and actually in 1936 which was after the decision of this Court in the two appeals, one by one the members of the Satpanthi faith left in order to prevent social ostracism from operating upon them. It is true that initially the Vahivatdar was not asked to take up the question. That may have been because it was considered by these persons at that stage that they would be able to collect subscriptions from out of which they would meet the expenses of the litigation ; but even so, if, as we hold, the expenditure was justified and as we have held that the expenditure was decided upon at the general meeting of the Satpanthi Samaj, we see no reason why the expenses of the litigation would not come within the statement of the law as we understand it from the judgment of their Lordships of the Privy Council. If these persons abandoned the faith, there would be no followers left and no religious worship. Again when a section of the Leva Patidar community excommunicated the plaintiff and others, it was in effect an attack upon the institution itself which the plaintiff and others, if they wanted to remain as followers of that faith, had to repel and which, by suits, they tried to repel. The question as to whether a particular transaction is for legal necessity must depend upon the facts of each case and we are satisfied that having regard to the circumstances of this case the promissory note which was passed by the deceased Dharma in November 1987 was for a necessary purpose and was binding upon the institution.
13. I have not so far referred in detail to the oral evidence in the case. [His Lordship discussed the oral evidence and concluded:
14. In our opinion, therefore, the promissory note in suit was executed by Dharma for legal necessity of the suit Sansthan, that for the same reason the plaintiff was entitled to specific performance of the agreement to execute the mortgage and that the plaintiff was entitled to recover the suit amount from the estate of the suit Sansthan.
15. Mr. Desai appearing for the plaintiff has, however, said that he is not keen on having a mortgage executed in favour of his client. He says that he will be content with having a decree passed in his client's favour for the amount claimed by the plaintiff on the promissory note. There is no doubt that the learned Judge did not go into the question whether or not an agreement to execute a mortgage could be specifically enforced because he took the view that the transaction was not for legal necessity. However that may be, Mr. Desai has referred us to a ease reported in Meenakshisundara Mudaliar v. Rathhasami Pillai I.L.R. (1918) Mad. 959, from which it will appear that an agreement to execute a mortgage can be specifically enforced. As, however, he does not claim relief on that basis it is not necessary to consider that question.
16. It only remains for me to consider the form of the decree to be passed in the case. Mr. Jahagirdar for the defendant has called our attention to Section 416 of the Principles of Hindu Law by Mulla, 10th edition. At page 503, this is what is stated:
In a case where the loan was made for legal necessity, the proper decree to be passed in a creditor's suit whether the loan be secured or unsecured, and whether the suit is brought against the debtor or his successor, is one directing the defendant to pay the decretal amount within fixed period, and directing further that if the amount is not paid within that period, a receiver shall be appointed to realise the rents and profits of the debuttor property and the proceeds from offerings, etc., and after payment of all expenses connected with the institution and the performance of the ceremonies and festivals and a reasonable provision for the maintenance of the shebait or mohunt, the balance shall be applied in discharge of the plaintiff's debt until such debt has been paid off.
17. This statement of the law is based upon the decisions of the Privy Council in Vibhudapriya v. Lakshmindra and Niladri Sahu v. Mahant Chathurbhuj Das.
18. In view of that legal position it is necessary to pass a decree in the sense indicated in Section 416(2).
19. The result is that we allow the appeal, set aside the decree passed by the lower Court and pass a decree in the following terms. His Lordship then set out the terms.