1. The suit out of which this appeal and the connected Appeal No. 317 of 1915 arise, was brought to enforce a mortgage-deed of the 10th of January 1881. The property hypothecated was the equity of redemption in a revenue-free grant in village Gadaya Latifpur and 500 bighas of revenue-free land in another village called Khankara. It is recited in the deed itself that the latter of these two properties was already mortgaged with possession to the same mortgagees under a deed of the 15th of June 1866. Part of the consideration of the simple mortgage now in suit was the redemption of this older usufructuary mortgage on the land in village Khankara. Out of the total consideration of Rs. 10,80 for the deed in suit a sum of Rs. 7,184 was calculated as due on the usufructuary mortgage of the 15th of June 1866, and was set apart for the redemption of the said mortgage. One effect, therefore, of the deed in suit was that the mortgagors became entitled to re-enter into possession of the land in village Khankara, which had hitherto been in the possession and enjoyment of their mortgagees. It, is further stated in the deed in suit that the revenue-free grant in village Gadaya Latifpur was also mortgaged with possession to the same mortgagees under a deed of the 18th of October 1865. It is only the equity of redemption which is hypothecated under the deed in suit. It is admitted that this mortgage of the 18th of October 1865 has never been redeemed. The relief sought in the present suit is to bring to sale the equity of redemption in respect of the revenue-free grant in village Gadaya Latif-pur and the entire right, title and interest of the mortgagors in respect of the land in village Khankara. The mortgagors under the deed are as follows:
2. 1. Mahant Lachman Das, disciple of Mahant Hari Das.
3. 2. Khubi Ram and Ram Ratan, sons of Gulab Das.
4. 3. Hargobind, son of Hardeo.
5. The evidence on the record shows that the properties now in question in villages Gadaya Latifpur and Khankara were in the possession in the year 1826 of one Mahant Kesho Das, described as priest of the temple of Sitaramji. They were held by him under revenue-free grants made by the Maharatta Government. This Kesho Das appears to have had a number of chelas or disciples, and it seems clear from the record that he himself belonged to a celibate order of religious ascetics. Kesho Das died somewhere about the year 1828 and, under circumstances which will require to be further considered, he was succeeded in possession of the properties in suit by two persons, Hari Das and Gulab Das. The former of these took the title of Mahant, lived as a celibate and would seem to have succeeded Kesho Das in the office of priest. Gulab Das was a married man and brought up a large family, seven sons of his being shown in the pedigree the correctness of which has been admitted. Hari Das, however, adopted chela, and as his eventual successor in the Mahantship, Lachman Das, one of the sons of Gulab Das. This is the Lachman Das whose name appears as the first of the mortgagors in the deed in suit, Of the remaining mortgagors two are sons of Gulab Das, while Hargjpbind is a grandson of Gulab Das, his father Hardeo having presumably died before the execution of the deed in suit. There is a recital in the same deed to the effect that three other persons interested in the mortgaged property as descendants of Gulab Das are 'not present here,' and the executants of (be deed undoubtedly purport to act for and on behalf of these alleged absent members of the family and to deal with the property as a whole, including the shares of the said absent members. The three persons thus specified are Har Prasad, an own brother of the executant Hargobind, Bhola, another grandson of Gulab Das, whose father Baldeo we must presume to have died prior to the execution of this document, and Bal Kishen, another son of Gulab Das There remains one other son of Gulab Das called Bhupal, who is not accounted for in the above statement of facts. His name neither appears as an executant of the mortgage-deed in suit nor in the recital of those members of the family on whose behalf the executants of the deed purport to act. In the absence of any evidence to the contrary it seems a fair presumption that Bhupal had died prior to the execution of this deed, and there is no evidence on the record to prove the contrary. The nearest the defendants have been able to get is the production of certified copies of certain village records which purport to show Bhupal as alive in the year 1879. This does not prove that he was alive in 1881, and does not seem to me to outweigh the presumption of his death which may reasonably be drawn from the wording of the deed in suit. It is an admitted fact in the case that Lachhman Das adopted as his chela another grandson of Gulab Das, namely, Raghunath Das, son of Khubi Bam, one of the executants of the deed in suit. This Raghunath Das similarly became a celibate Mahant and succeeded Lachman Das in the office of Mahant in connection with the temple of Sitaramji. Baghunath Das has since departed from the tradition of the family by adopting as his chela a person named Banarsi Das who is an outsider, that is to say, not a descendant of Gulab Das, and in respect of whom it is alleged, though the matter has not been enquired into in the present case, that he is disqualified from succeeding to the Mahantship by the fact that he is a house-holder and a married man. At any rate, on the 29th of May 1907, Mahant Baghunath Das executed a deed by which he purported to transfer all his rights, including both his personal property and his office as Mahant and whatever interest he possessed as priest, manager or trustee of the temple of Sitararaji, to the aforesaid Banarsi Das. A suit was brought by Banarsi Das on the strength of this document, in which he impleaded all the descendants of Gulab Das, together with certain persons alleged to be transferees of property appertaining to the temple, but not the mortgagees under the deed now in suit or any representative of the said mortgagees. The suit was resisted upon a variety of grounds, and after it had been dismissed by the Court of first instance it came before this Court as First Appeal No. 307 of 1910, decided on the 28th of October 1912. The learned Judges of this Court expressly declined to determine the question whether the property in suit in that litigation, which included the property now in suit, was or was not trust property belonging to the temple of Sitaramji. Their decision proceeded upon this line of argument: either the property in suit was trust property, as alleged by Banarsi Das, that is to say, appertained to a trust of which Mahant Baghunath Das was, or had been, the sole manager and trustee, or it did not. If it did not, Banarsi Das obviously had no case at all: assuming for the sake of argument that it did, there was no evidence on the record to satisfy the Court that Baghunath Das had any right to nominate his successor at his own free will and pleasure, still less to transfer the office of Mahant, with the rights and duties of trustee and manager of the temple property, to another person during his own lifetime.
6. The present suit was instituted on the 29th of March 1910, that is to say, before the declaratory suit brought by Banarsi Das had been decided even by the Court of first instance. The foregoing recital of facts is, however, necessary to the understanding of the pleadings in the present suit; and in the view which I take of the case a proper appreciation of these pleadings is absolutely essential to the determination of the questions raised by these appeals. It may be said at once that the plaintiff is a transferee of the rights of the original mortgagees under the deed in suit, and also under the usufructuary mortgage of October the 18th, 1865. The determination of the present suit has, as a matter of fact, been delayed by the circumstance that a plea, raised by the defendants, against the validity of the plaintiffs document of transfer, was accepted in the first instance by the trial Court; but the decision on this point was taken to this Court in appeal and was disposed of by this Court on the 17th of November 1913 (vide First Appeal No. 21 of 1912 the record of which has been before us), with the result that the validity of the plaintiff's document of title was affirmed. It seems just worth while to note at once that the plaintiff is himself the trustee and manager of another religious endowment connected with another temple at Bindraban, and that the money which he has embarked on this speculation presumably comes from the surplus profits of the trust in his hands. It is entirely superfluous, therefore, to allow any considerations as to the feelings of the Hindu public with regard to the sanctity of temple endowments to interfere with the consideration of the questions of law involved in this suit. If the plaintiff succeeds he will bring this property to sale for the benefit of another religious endowment. Nor is it necessary that we should trouble ourselves overmuch with any considerations as to the general equities of the case. The plaintiff is a speculator who has bought up a disputed claim for what it may be worth; while the defendants are in the position of persons who have raised money upon property under a representation that they had every right to do so, and who are now seeking to repudiate the debt on the ground that the property hypothecated was not theirs to deal with.
7. The array of defendants as originally impleaded was as follows:
8. The first defendant was Banarsi Das, who is described in the plaint simply as 'disciple of Baghnnath Das.' The next six defendants were representatives of the family of Gulab Das, being his grandsons, great-grandsons or great-great-grandsons, together with the widow of a deceased descendant, who was presumably impleaded as a matter of precaution. The eighth defendant was stated to be an auction-purchaser of whatever rights Raghunath Das had possessed in the property in suit; while the ninth defendant was the successor-in-title of the original mortgagee, who had transferred his rights to the plaintiff. Subsequently, three more defendants were added; two of these were alleged to be also transferees of the rights of Raghunath Das in the property in suit; and Eaghunath Das himself was also impleaded, apparently at the suggestion of the Court. He is described as 'Mahant Eaghunath Das, a disciple of Mahant Laohman Das, gaddinashin and managing trustee of the temple of Thakur Sri Sitaramji Maharaj, placed at Manza Gadaya Latifpur.' In the petition by which Eaghunath Das was impleaded the plaintiff carefully refrained from admitting that Eaghunath Das was in any way a necessary party to the suit. He admitted him to be the managing trustee of a certain temple; but his case was throughout that the property in suit formed no part of the endowment of that temple, or of the trust property in the hands of Raghunath Das. The property in suit was alleged by the plaintiff to be the personal property of the original mortgagors, and Banarsi Das was impleaded, instead of Eaghunath Das, on the ground that the latter's deed of the 29th of May 1907, whatever might be its effect as regards the trusteeship and the trust property, did operate to transfer in favour of Banarsi Das whatever rights Raghunath Das possessed in any personal property of his own. In a petition which he presented to the Court after he had been impleaded, Eaghunath Das disclaimed all interest in the litigation. He apparently intended to support the contention of Banarsi Das that the property in suit was not merely trust property, but appertained to an endowment in favour of the temple of Sitaramji of which Eaghnnath Das had been the sole trustee and manager, until he transferred his rights to Banarsi Das. Those defendants who resisted the suit raised a variety of pleas; but the point to be noticed for my present purpose is that there was a marked difference in the position taken up by Banarsi Das on the one hand, and by the descendants of Gulab Das on the other. Both these parties took the plea that the property in suit was trust property appertaining to the temple aforesaid, and as such inalienable;but they were as much at variance amongst themselves as they were with the plaintiff. Banarsi Das expressly pleaded that the property in suit appertained to a trust of which he was himself the sole manager, by appointment in succession to Eaghnnath Das; he pleaded that 'Eadha Ballabh and other defendants, the heirs of Gulab Das, have no interest in the property.' On the other hand, those of the descendants of Gulab Das who contested the suit denied that Banarsi Das had any interest in the matter. They not merely denied that he had succeeded to the interests of Baghunath Das, whatever they may hagre been, in the property in suit; but they set up a trust under which the descendants of Gulab Das were joint trustees along with whatever Mahant for the time being had succeeded to the rights of Hari Das and of Laohman Das. They pleaded, and in view of the position taken up by them they were clearly entitled to plead, that Eaghunath Das was a necessary party to the suit, and that his absence from the array of original defendants was a fatal objection to the maintainability of the entire suit, inasmuch as he had been impleaded after the expiration of the special period of limitation prescribed by Section 31 of the Indian Limitation Act (IX of 1908), within which the present suit was instituted. The learned Subordinate Judge fixed a number of issues, and one of these issues was whether Banarsi Das or the defendant Raman Das (a grandson of Hargobind, one of the executants of the mortgage deed in suit) was the lawful successor to Mahant Raghunath Das. In the end, however, the Court below came to the conclusion that this was an issue which arose only as between two of the defendants and did not require to be decided in order to the determination of the suit. He overruled on various grounds all the pleas raised by all the defendants, except the plea taken by the descendants of Gulab Das to the effect that the shares of those members of the family who had not joined in the execution of the mortgage-deed in suit were not affected by the mortgage and could not be brought to sale in satisfaction of the same. On this basis he has given the plaintiff a decree for the full amount claimed by him, but enforceable only as against an undivided 17/24ths share of the property in suit. All the defendants exeept Banarsi Das have submitted to this decree, and I regard it is most important to insist upon the fact that the appeal now before us is by Banarsi Das alone. On the other hand the plaintiff has filed a separate appeal No. 317 of 1915, in which he asks that the decree of the Court below be modified by making it enforceable as against the whole of the mortgaged property. This appeal I propose to deal with in a separate judgment.
9. The memorandum of appeal presented by Bavaria Das is a somewhat prolix and argumentative document, but it has been agreed before us that in substance only three points are raised:
10. (1) It is contended that the property in suit is trust property, belonging to the idol worshipped in the temple of Sitaramji at Gadaya Latifpur, and to no other parson whatsoever, so that the executants of the mortgage-deed in suit had no right to alienate the same and it cannot be brought to sale in execution of the mortgage decree.
11. (2) It is contended that Mahant Raghunath Das was a necessary party to the suit, and that the suit must fail on the mere ground that he was impleaded after the expiration of the prescribed period of limitation.
12. (3) A plea is taken, in the altarnative, to the effect that, on the view of the facts taken by the Court balow and assuming that the joint family formed by the lineal descendants of Gulab Das were owners, or part owners of the property in suit, then it should be held as a matter of law that the executants of the mortgage-deed had no right to hypothecate either their own shares or the shares of any person in the joint ancestral family property, and that this ground alone would be sufficient to warrant the dismissal of the plaintiff's suit.
13. I propose to take these points in the reverse order, because the last two can, in my opinion, be very briefly disposed of. I do not think there is any force in the third plea, and I propose to deal with it more in detail in my judgment on the cross-appeal filed by the plaintiff. For the purpose of the appeal now under consider ation it is sufficient to say that this plea is not open to Banarsi Das. He is not, never was, a member of the joint family formed by the descendants of Gulab Das. If one or more members of a Hindu joint family, purporting to act on behalf of the family as a whole, make an alienation of joint family property, it is, of course, open to those members of the family who did not join in the alienation to contend that it was made without authority, that it was not made for valid necessity, or for the benefit of the joint family, and that it is not enforceable. As against a person like Banarsi Das, who is not a member of the joint family and does not claim through the joint family, the alienation is good.
14. In dealing with the question of limitation I have one further point to note. A document which is on this record at page A12 shows that Baghunath Das died on the 19th of January 1913, during the pendency of this suit in the Court below. The plaintiff made no attempt to have any person brought on the record as successor to Raghunath Das; and from his point of view he was obviously right in not doing so. He had contended throughout that Raghunath Das was not a necessary party to the Suit and that any interest which he had ever possessed in the property in suit had passed to other hands. Banarsi Das in his memorandum of appeal to this Court says that he files his appeal in the capacity of trustee of the was property belonging to Thaknr Sitaramji, representing Raghunath Das in that capacity. He has never applied to this Court to be brought upon the record as successor to Raghunath Das. Had he made such an application, it seems clear to me that it could not have been granted without some further enquiry, seeing that the right of succession to the office of Mahant and to the trusteeship held by Baghunath Das was a matter in controversy in this very suit The document to which I have already referred does, no doubt, afford some evidence in support of the contention that Banarsi Das, whatever his rights may be, has succeeded in obtaining effective possession of the temple and of any property appertaining to the temple other than the property now in suit. At the same time it seems clear that no litigant has a right to assume to himself the position of legal representative of a deceased litigant, without making an application to the Court in proper form and obtaining the orders of the Court thereon. In the suit itself the position taken up by Banarsi Das was that he had already taken the place of Raghnnath Das as manager and trustee of the temple in virtue of the transfer of the 29th of May 1907. The plaintiff impleaded Raghunath Das as manager and trustee of the temple, but denied that the property in suit had any concern with the trust of which Raghunath Das was the manager. The question of limitation, therefore, if it can be raised at all by Banarsi Das in this appeal, depends for its determination on the decision of the Court in respect of the main question. If the property in suit is found to belong to a trust of which Mahant Regnant Das was, on the date of the institution of this suit, the sole trustee and manager, the suit will fail on its merits, and it must also be held to be barred by limitation on the ground that the trustee was impleaded after the expiration of the limitation period. On a contrary finding it would follow that Mahant Regnant Das bad, on the date of the institution of the suit, no interest in the property in question and was not a necessary party. This was the position taken up by Raghunath Das and by Banarsi Das himself in the Court below, and I very much doubt if the appellant can be permitted to resale from it now. I may say further that, after carefully considering the memorandum of appeal filed by Banarsi Das in connection with this question of limitation, I am by no means satisfied that it is incumbent upon us at all to hear Banarsi Das on the merits. He does not appeal in his personal capacity as Banarsi Das, defendant No. 1 in the suit. He expressly claims to appeal as the representative of Raghunath Das, the person subsequently impleaded as defendant No. 10 in the suit. He has, no doubt, adopted this attitude in the hope that it may lend force to his plea of limitation; but he has neglected to observe that he is not entitled to appeal as a legal representative of a deceased defendant, without first obtaining an order of the Court bringing him on to the record in that capacity. He has not amended his pleadings in any way in consequence of the decision of this Court in First Appeal No. 307 of 1910, and must be taken to stand by the position originally taken up by him that the trusteeship of the temple had been transferred to him prior to the institution of this suit by the deed of the 29th of May 1907. In the absence of any amended pleading on his part or of any application from him asking to be brought upon the record as the legal representative of Mahant Raghunath Das, after the death of the latter, and of any order to this effect from the Court, it seems to me that his appeal as filed is not maintainable at all.
15. It is only because this point was not properly brought out in the course of argument before us that I prefer to pass on to the consideration of the main plea raised by Banarsi Das, instead of throwing out his appeal on this ground alone. With regard to this question whether the property in suit forms part of a religious endowment, there is a great deal of evidence of one kind or another on the record and I quite admit that portions of that evidence have not been satisfactorily dealt with in the judgment of the Court below. At the same time it seems to me that the issue as between Banarsi Das and the plaintiff (and these are the only parties with whom we are concerned in this appeal) lies within a very narrow compass. I find no force in the contention, pressed upon us in argument, that the property in suit never belonged to Mahant Kesho Das, but was from the very outset a religious endowment, the true owner of which was the idol of Thakur Sitaramji worshipped in a particular temple. It is admitted that the revenue-free grants by the Maharatta Government in respect of the lands in both the villages in suit were at one time in existence in writing, but the grant in respect of village Gad ay a Latifpur is not forthcoming. 1 find nothing on the record to lend colour to the suggestion made on behalf of the appellant that this document is in the hands of the plaintiff and is being wilfully kept back by him. It is expressly referred to in one of the older documents on the record as haying been lost. What is described in the judgment of the Court below as 'the original sanad of muafi Mouza Khankara, dated 10th Jamadi-ul-auwal 1321 Hijri is on this record and has been produced by the plaintiff. It is a very ancient document and, partly in consequence of the defective processes employed in our Courts for the binding of records, is now in an extremely damaged condition. The official translators of this Court have been compelled to report that they are unable to prepare any intelligible translation of the document. The learned Judge of the Court below is a Muhammadan gentleman: I have no doubt that he was quite capable of reading the document in question with comprehension, and it would appear that he was able to do so while its condition was less dilapidated than it is at present. He states in his judgment that this sanad confers the property as a personal grant or muafi from generation to generation; and I can see no reason why we should not be content to accept this account of its contents. There is nothing unusual or inconsistent with Hindu religious ideas in the making of a grant to the Mahant of a temple for the personal enjoyment of himself and of his successors after him. No doubt the person making the grant is influenced by the fact that the grantee is the priest of a temple and performs religions services in connection therewith, but that is no reason why a grant made for the enjoyment of the Mahant personally should be construed as a grant in favour of the idol as a juristic personality. Moreover, there is one consideration which seems to me decisive against the appellant as regards this part of the case. The one document in the appellant's favour, without which he would have no arguable case at all, is the hostname (deed of endowment, or of dedication) executed by Mahant Kesbo Das on the 9th of May 1826. At the time when he made that, grant Kesho Das obviously regarded himself as having full right of disposal in respect of the property dealt with therein. The appellant himself asks us to regard this document as creating an endowment in favour of the temple, or of the idol as a juristic personality; and this position is inconsistent with the suggestion that the endowment was already in existence, or that the idol was already the owner of the property and Mahant Kesho Das no-thing more than a trustee. The one difficult point in the case is the meaning and the legal effect of this document itself. The learned Subordinate Judge has brushed it aside somewhat lightly with the remark that it was never acted upon. I freely concede to the appellant that this is not a satisfactory way of dealing with it. If the Court has before it a document which undoubtedly created a trust or religious endowment, it is not a sound position to take up that the document became of no effect as soon as the trustee or trustees appointed thereunder began to commit breaches of trust in respect of the pro perties thus placed in their hands. I think the document requires to be considered, both in connection with the pleadings of the Parties to this appeal, and in connection with the available evidence bearing on the position of Kesho Das at the time, and the events immediately following on his death. We have it from Mahant Kesho Das that he had a good many chelas or disciples, and disciples, and he was obviously anxious to arrange that the property in his hands to should pass peaceable after his death into the hands of the two particular persons whom he desired to nominate as his sue cessors. It is to be noted that he described them somewhat differently in the deed m question. He speaks of Hari Das as 'my disciple, and of Gulab Das as my adopted son.' Seeing that Kesho Das was certainly a very old man when he executed this document and that he died within two years of its execution, I think that we may take it that Gulab Das was already a family man in the year 1826, was married and had begotten children. The fact that he is described as 'my adopted so,' and not as ''my disciple,' suggests that Mahant Khesho Das himself was doubtful whether Gulab Das would be accepted by Hindu religious feeling as a qualified successor to himself in the office of Mahant and of temple priest. At the same time he was obviously anxious to make provision for Gulab Das and his family and to insure for their benefit a right to share in the profits of the property in question. It must be remembered, further, that he held this property under revenue-free grants. Those grants might or might not be confirmed by the British Government. The property itself, that is to say, the share in Gadaya Latifpur and the land in village Khankara, Mahant Kesho Das might perhaps dispose of by Will so as to secure peaceable succession to the same for the benefit of his legateee; but the value of the property would be greatly diminished if the Government refused to continue the revenue-free grant and proceeded to assess the land to revenue. I take it that these considerations dictated the peculiar form of the document which we have to consider. It is curiously worded, and one part of it is difficult to reconcile with another. In one place the Mahant purports to make a gift or dedication of the property in question (which by the way includes other property besides that now in suit) to Thakur Sitaramji as a juristic personality, and merely to appoint Hari Das and Gulab Das to perform the worship and services of the idol. Further on, however, he speaks of them as his 'donees,' and says that, while they should be careful to keep up the worship and services of the Thakurji, they are to regard themselves as owners of the gifted property and to enjoy the same as such. Another point which was not noticed in the course of argument before us, but which seems to me of some significance, is that the idol of Thakur Sitaramji spoken of in this document does not seem to be identical with the idol of which, according to the plaintiff, Mahant Raghunath Das was the managing trustee on the date of the institution of the suit. The latter is in a temple at Mauza Gadaya Latifpur; but in the deed of 1826 Mahant Kesho Das describes himself as priest of the temple of Sitaramji situated in Mohalla Pulan in the town of Bindraban, and there is nothing in the document to suggest that the 'Thakur Sitaramji' subsequently referred to is any other than the idol worshipped in this temple in the town of Bindraban. After the death of Mahant Kesho Das the question of the continuance of this revenue-free grant in favour of his legatees or successors was considered by the British Government and was the Subject of a good deal of correspondence, extracts from which are to be found printed in this record. The revenue-free grant was continued; but it is beyond question that neither the temple, nor the idol of Thakur Sitaramji regarded as a juristic personality, was ever entered in the revenue papers as the holder of the grant. At page A6 of the record is an extract from the register of revenue-free grants relating to village Khankara. The name of the holder of the grant there given is 'Hari Das Bairagi.' There is a note that it was granted for the love of God and for the expenses of Thakurji in 'Gadaria Ilaka Farrah.' The name 'Gadaria' in this place would seem to be a variant of the name of Gadaya Latifpur. A similar paper of the year 1868 relating to this latter village shows that the British Government finally remitted the revenue assessable on this village in favour of Hari Das and Gulab Das, heirs to Kesho Das. The word 'heirs' is to my mind of great significance. Under the heading 'designation of the tenure' appears the following entry: 'for the maintenance of the priest and the expenses of the temple of Thakur Sitaramji.' In the mortgage-deed of October the 18th, 1855, Gulab Das and Lachhman Das, the successor of Hari Das, speak of the property in Gadaya Latifpur as constituting a muafi in perpetuity granted by Maharaja Sri Madho Rao Sahib Bahadur of Gwalior for generation after generation and upheld as such by the British Government, and as having been 'in our proprietary possession up to this day.' They unquestionably assume to themselves the right to deal with this grant as their own and to alienate it in such manner as they think proper. At the same time, while putting the mortgagees in possession, they reserved to themselves the right to receive one rupee daily from the mortgagees, 'for the expenses of the temple of Sitaramji Maharaj situated in the village aforesaid.' Now there has been much litigation arising out of this stipulation, and the question of the position of the mortgagors and mortgagees under this deed of 1865 does not come to us precisely as res Integra in the present litigation. The documents which especially require consideration are a judgment of the District Judge of Agra, dated February the 19th, 1892, at page 10R of this book, and a judgment of the same Court, dated July the 12th, 1912. With regard to the former of these documents it is to be remarked that the decision of the District Judge was not affirmed by this Court on appeal: there was an order of remand which resulted eventually in a judgment (which the parties have neglected to print) by which the decision of the District Judge was considerably modified. The net result of this litigation has been that this allowance of one rupee per diem has been held not to appertain to any trust or endowment, either in favour of the temple or in favour of the idol worshipped therein, but to be a personal right reserved to themselves by the mortgagors. Further, it has been held that the successors of the original mortgagors are entitled to recover this allowance piecemeal in certain definite shares; that is to say, a right to receive one-half of the allowance has been affirmed in favour of the successor to the Mahantship, the other half the heirs of Gulab Das have been permitted separately to recover for the benefit of the joint family to which they belong. The decision of the District Judge of Agra in the litigation of 1912 seems to me of particular importance. I do not say that it operates as res judicata as between Banarsi Das and the plaintiff. But even as between them it is relevant evidence, as an instance in which a certain right was con-tested and was affirmed by the Court. In that litigation the present plaintiff, as successor of the original mortgagees, was arrayed on one side along with Raghunath Das, while the descendants of Gulab Das, who were claiming a half share in the arrears of the daily allowance, were arrayed upon the other. In deciding that the heirs of Gulab Das were entitled to receive the half share claimed by them, the learned District Judge expressly proceeded upon a finding that the mortgagors in the deed of 1865 had hypothecated their personal property, and not endowed property belonging to the temple for the services of which it was said that the allowance ought to be expended. It seems to me that this finding is conclusive as between the plaintiff on the one hand and the descendants of Gulab Das on the other, and this may be the reason why the latter have not seen fit to contest this appeal. The position of Banarsi Das is not quite the same; but we must limit ourselves to a consideration of the case as it stands between the appellant and the respondent now before us on their own pleadings, and on the evidence on the record it seems to me that Banarsi Das has no substantial case. The one document in his favour is the bhetnama of May the 9th, 1826, and that document, if it is evidence of any kind of trust, is no evidence at all of the particular trust alleged and contended for by Banarsi Das in this case. On any possible interpretation of that deed, it does not create a trust the benefits of which are to go wholly to the temple of Thakur Sitaramji, still less to a temple of that deity situated in Gadaya Latifpur; still less does it create a trust of which the sole manager and trustee shall be the Mahant of the temple for the time being. If this document can be construed as creating any sort of a trust, then it is a trust for the maintenance of the worship of the idol in a certain temple, but principally for the benefit of the trustees themselves, and these trustees are Mahant Hari Das and his successors after him and Grulab Das and his descendants after him. If I felt that this appeal could not be disposed of without going further into the question of the possible creation of a trust of this nature, and the legal consequences which would follow in the event of such a trust being proved, I should have a good deal more to say; but I do not think this question is now in issue. Mahant Banarsi Das (as I observe that he now calls himself) set up a trust for the benefit of the idol Thakur Sitaramji, of which he was himself the sole manager and trustee. The plaintiff admitted the existence of a trust in favour of the idol of which Mahant Raghurmth Das was the sole manager and trustee, but denied that the property in suit appertained to that trust. So far as the parties now before us are concerned, they went to trial on this issue and the one piece of evidence which can be seriously relied on in favour of Banarsi Das is the document of 1826, which is no evidence that the property in suit belongs, or ever belonged, to a trust exclusively in favour of the idol in question, or of which the Mahant of the temple for the time being was the sole trustee. All the other evidence on the record is entirely against Banarsi Das, and in favour of the contention that the mortgagors of 1881 were right in saying that they had a power of disposal in respect of the property dealt with by the deed in suit.
16. If it be suggested that I am taking too narrow a view of the pleadings, and that Banarsi Das should be allowed at this stage to set up, at least by way of an alternative pleading, the alleged rights of the descendants of Gulab Das by way of jus tertii, although he had expressly denied the existence of those rights in his written statement, even then it seems to me that the position is clear. If Banarsi Das can be heard to plead the rights of the descendants of Gulab Das, he cannot raise on their behalf any plea which would not be open to them. And in my opinion they are precluded by the decision of the District Judge of Agra, of July the 12th, 1912, from asserting that the property now in suit, or rather the half share in that property with which they are concerned, is not their personal property. They have obtained, as against the present plaintiff, a decree which proceeded upon an express finding to the above effect, and which without that finding would have been impossible. On these grounds I am of opinion that there is no force in this appeal, and that it must be dismissed with costs.
17. Walsh, J.--I agree in the order dismissing the appeal. I do so with some hesitation, solely because I entertain an uncomfortable feeling that the deed of 1826 created a religions endowment of property which could not thereafter be legally alienated under any circumstances except for the purposes of such endowment, and that we are impliedly sanctioning what may be described as a prescriptive right to divert trust property from its original purpose without the approval of any Court. I think the property and those in possession of it have long ceased to pay any but a perfunctory and inconsiderable tribute either in spirit or in cash to the wishes of the original founder of the endowment.
18. I recognize, however, the force of my brother's observation with reference to the feelings of the Hindu public in this particular case, and having regard to the special circumstances and to the special form in which the case now comes before us in appeal, I think that the order proposed does substantial justice between these parties.
19. By the Court.--The appeal is dismissed with costs.