1. This is an appeal by the defendant against the decree of the Subordinate Judge of South Kanara in O.S. No. 44 of 1919 on his file. The suit was brought by the Swami of Admar Mutt in Udipi against the present Swami of the Sirur Mutt to recover from the assets of that Mutt the amount claimed to be due under a ' Sampratipatti ' or settlement of accounts signed by the late Swami and marked as Ex. A. The defendant denied the genuineness of Ex. A and the existence of the debt and the admissibility, of the document in evidence and he further pleaded that even if the debt was true it was not binding on the Mutt or its properties as it was not contracted for any necessity or benefit of the Mutt, the Mutt having ample income to meet all its legitimate expenses,
2. On these pleadings two issues were framed, namely, whether the patti sued on was true and valid and receivable in evidence and whether the debt was binding on the defendant's Mutt. The Subordinate Judge found both these issues in plaintiff's favour and gave him a decree as sued for. The appellant before us has not attacked the finding on the 1st issue; his learned vakil however contended that the finding on the 2nd issue should have been in the negative and in his client's favour and the suit should have been dismissed.
3. We have thus to consider in this appeal whether the debt sued on was borrowed by the late Swami of the Sirur Mutt for a purpose binding on the Mutt properties in his successor's hands. Now it is clear law that a Shebait or Matathipathi cannot alienate Mutt properties unless constrained to do so by unavoidable necessity and the same rule must apply to the creation of debts binding on Mutt properties, for the enforcement of such debts may result in the alienation of such properties through Court sale. The rule regarding alienation is laid down very clearly by the Privy Council in the recent case of Palaniappa Chetty v. Sreemath Devasikhamani Pandara Sannathi 33 M.L.J. 1 (P.C). Their Lordships refer to their previous decisions in Prosunno Kumari Debya v. Golabchand Baboo (1875) L.R. 2 I. A. 145; Koonwar Doorganath Roy v. Ram Chandersen I.L.R (1876) Cal.341; and Hanooman-persaud Pandy v. Mussumat Babooee Munraj Koonwaree (1856) 6 M.I.A .393 and explain that the expression 'benefit to the estate' as used in them though not capable of a precise definition meant' the preservation of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, and such like things ' see page 718 Here we have no question of benefit to the estate but only whether there was necessity to incur the debt.
4. The position of the head of a Mutt and his powers were again considered by the Privy Council in deciding whether he could be described as a trustee within the meaning of Article 134 of the Limitation Act in Vidya Varuthi v. Balusami Ayyar 41 M.L.J.346 (P.C.) and in that judgment their Lordships again affirm the proposition that except for unavoidable necessity the head of a Mutt cannot create any interest in the Mutt property to enure beyond his life time.
5. There is no doubt an observation in Saminatha Pandara v. Sellappa Chetli I.L.R(1879) Mad. 175 that ' acting for the whole institution, he (the Matathipathi) may contract debts for purposes connected with his Matam and debts so contracted might be recovered from the Matam property, and would devolve as a liability on his successor to the extent of the assets received by him ' and this passage has been quoted by their Lordships of the Privy Council in Vidya Varuthi v. Balusami Iyer 41 M.L.J. 346 (P.C) Reliance has been placed on it by the learned vakil for the respondent for his argument that it is sufficient that the debt is shown to be incurred for Matam purposes and not for the Matathi-pathi's private purposes to make it binding on Matam properties and that it was not necessary to prove any necessity for the borrowing. In my opinion this is a clear misreading of the observation. I understand it to refer to necessary purposes connected with the Matam as that is the proposition established by the authorities.
6. I do not think it necessary to discuss all the authorities cited to us as these recent Privy Council rulings are clear on the point. It follows that we cannot uphold the plaintiff's claim to have the plaint debt paid out of the Mutt properties in the defendants's hands unless there is clear proof of necessity for the borrowing. There are two things to be considered in this connection. The borrowing may be for a purpose which is not in itself justifiable at all; again the purpose may be a legitimate one but nevertheless the Matathipathi having enough funds of the Mutt in his hands at the time there might be no necessity to borrow at all to meet the expenses; in other words the question may be one of the legitimacy of the purpose for the debt or of the financial necessity to borrow. Now it was argued for the respondent that it was only the question of financial necessity, which would depend upon the amount of money available to the late Swami to meet the expenses, that was put in issue in the lower Court and not the legitimacy of the expenses themselves. I am unable to accept this argument. The defendant's written statement, paragraph 3 says after pleading that the Mutt had ample income to meet all necessary expenses that ' the debts are not valid and binding against the defendant's Mutt or its properties as they were not and could not have been contracted for the benefit of the Mutt '; and the wording of issue 2 is quite wide enough to include both objections.
7. I shall turn to consider whether debts in question are proved to have been incurred for necessary purposes. Ex. A is a settlement of account of the borrowings less repayments from July 1902 to August 1916. The total amount of debt with interest came to Rs. 27,435-0-11. The repayments with counter interest came to Rs. 11,463-6-3 leaving a balance of Rs. 15,871-10-8 for which Ex. A was executed. A perusal of the accounts and receipts in Ex. B. shows that the most part of this balance was borrowed during what is known as the ' Pariyaya ' period of the Sirur Swami and in connection with the Pariyaya expenses and for building a bhojanasala or dinning hall during that period, the previous borrowings having been mostly repaid. To understand the case it is necessary to explain what is meant by the term ' Pariyaya. ' There are in the town of Udipi in South Kanara eight Mutts presided over by eight Matathipathies. Plaintiff and defendant are two of those Matathipathies. Affairs of each Mutt are looked after by its own Matathipathi. They are all endowed with separate properties of considerable value. Besides these Mutts there is a Krishna Temple in the same place in which there is an idol of Sri Krishna which is worshipped. This temple is also richly endowed but there is no Swami or Dhar-makartha to manage its affairs. Its affairs are managed by the eight Matathipathies in rotation each taking the management for two years at a time, beginning from January 15th of one year and ending in the January 15th of the 3rd year. The turn of each Swami is fixed according to custom. This method of management is called the Pariyaya system and the Swami who is for the time being the manager is called the Pariyaya Swami for those years and the period of two years during which he is the manager is called his pariyaya period. The tradition about the way in which these eight Mutts and the temple came to be founded and the way in which their affairs are carried on is given in the South Canara District Manual. It is obligatory on each Swami when his turn comes to perform the pariyaya for the two years of his period. During that time he is entitled to get all the income of the Krishna temple which besides the income from its lands includes certain payments from the British and Mysore Governments and also Kanikais or offerings from the devotees and pilgrims who come to the temple to worship. It is also in evidence that the Swamis are able to save every year substantial sums of money from the income of their own Mutt properties after meeting their current expenditure. It would seem that the Swamis were in the habit of adding these moneys also to their income from the Krishna temple during the pariyaya period to meet the pariyaya expenses. It is the plaintiff's case that all these moneys are insufficient to meet the pariyaya expenses and it is necessary and usual for each Swami to borrow Rs. 30,000 to Rs. 40,000 to make up the deficiency for the two years. Plaintiff says that the plaint debt was mainly incurred in this manner to meet the pariyaya expenses of the Sirur Swami.
8. It is in evidence that the income of Krishna Temple from all sources would amount to about Rs. 25,000 to Rs. 30,000 a year or Rs. 50,000 to Rs. 60,000 for the two years. The income of the Sirur Mutt is said to be about Rs. 10 to Rs. 15,000 a year from which Rs. 5,000 to Rs. 6,ooo could be saved in ordinary years. During the pariyaya period the Swami brings away his own idol from his Mutt to the Krishna temple and the expenses of his own Mutt are thus reduced. The Swami was thus in a position to utilise Rs. 12,000 or Rs. 15,000 of the income of his own Mutt during the two years for the pariyaya expenses. All these figures are of course only approximate. It is also in evidence that the Sirur Swami had about Rs. 30,000 in hand saved from his Mutt income for the previous years which he added to the other moneys. As explained by this Court in I.L.R. 2 Mad. 175 and other cases and accepted by the Privy Council in 44 Mad. 831 the Matathipathi has a large dominion over his surplus income and he is not bound to account for it and his discretion to use it as he likes is unfettered. It was thus open to the Sirur Swami to use that accumulated amount for the pariyaya expenses. Thus it would seem that the Sirur Swami had about a lakh of rupees at least to meet the pariyaya expenses for his term of two years. Plaintiff however contended that this amount was insufficient for the purpose as the expenses came to about Rs. 1,30,000 at least and borrowing was necessary. It may be conceded that all the moneys the late Sirur Swami got from his income and his earnings and his borrowings he spent for his pariyaya expenses, and for building the dining hall. But before we can justify his borrowing it must be shown that he was under a legal obligation to incur expenditure in the manner and to the extent that he did. The Subordinate Judge has not considered the case from this point of view at all.
9. There are no doubt certain poojas and ceremonies which have necessarily to be performed and any reasonable expenditure incurred for carrying them out will be binding on the Mutt. But there is no obligation to have the ceremonies performed on the scale that the Sirur Swami did. It was argued for the respondent that the scale on which the ceremonies should be conducted must be taken to be fixed by the long continued practice of the institution. Even so there is no evidence on which we can find that any definite and clear practice existed with regard to that. It is more likely as one of the plaintiff's own witnesses P.W. 4 says that there is ' no rule to the effect that any particular amount should be spent for the pariyaya but all the ceremonies should be performed according to mamool (or usage). The different Mutts are not equally wealthy; the poorer ones must necessarily perform the ceremonies on a smaller scale so long as no ceremony is omitted. One main item of expense incurred is the feeding of the Brahmins in large numbers every day throughout the year. That evidently is a very elastic item over which much money could be spent or considerable economy exercised.
10. There is really no evidence in the case on which we can rely to show that it was necessary to borrow to meet the legitimate expenses of the pariyava. All that is attempted to be shown is that the money has been spent and that other Swamis have also been in the habit of borrowing during their time. Such evidence is quite inadequate in my view to show that there was 'necessity for borrowing the plaint debts.
11. As regards the Bhojanasala, the Sirur Swami not only seems to have re-built it but put up an upstairs to it. Surely it is not shown that there was any necessity to do all these. A sum of Rs. 1,000 of the plaint debt was borrowed for the construction of this dining hall but it is not shown whether it was borrowed for the construction of the hall downstairs or for the room upstairs. There was clearly no necessity to build the upstairs as it never existed before. It follows therefore that for this debt also necessity is not proved.
12. The failure to produce the accounts of the Sirur Mutt was commented upon by the learned Vakil for the respondent and we were asked to draw from that fact an inference that the borrowing were for necessity. It is not very clear on the evidence that the defendant is in possession of those accounts and is wilfully keeping them back. Secondly it is difficult to see how these accouts will help to show that the monies borrowed for the pariyaya expenses were borrowed for necessity. In the view I am taking that for all legitimate expenses the funds in hand were sufficient.
13. As regards the debts borrowed just prior to the pariyaya period there is no evidence why they were wanted. It follows that there was no necessity proved to borrow the plaint amount and the plaintiff is not therefore entitled to recover it from the Mutt lands.
14. The learned Vakil for the appellant also contended that in any event plaintiff is not entitled to have direct recourse to the Mutt properties for his debt as there was no express charge or mortgage for it on them and he relied on Swaminatha Aiyar v. Srinivasa Aiyar (1917)5 L.W. 323 and also on certain English cases of executors and trustees such as Strickland v. Symons 26 Ch. D. 245, In re Evans: Evans v. Evans 34 Ch. D. 597, Forhall v. Forhall 7 Ch. D. 123 In re Robinson's Settlement: Gant v. Hobbs (1912) 1 Ch. 717 and In re Johnson: Shearman v. Robinson 15 Ch. D. 548 . But it has been held in India that this rule does not apply to the case of Matathi-pathies. see Shanker Bharathiswami v. VenkataNaick I.L.R.(1885) 9 Bora. 422; Srimath Deivasikamani Pandarasannadhi v. Noor Mahomed Rowthen I.L.R.(1907) Mad. 47:17 M.L.J.583, Lakshmindra Thirthaswamiar v. Raghavendra Rao I. L. R.(1920) Mad. 795 and Sundaresan Chettiar v. Viswanatha Pandara Sannadhi I.L.R. (1922) Mad. 707. In the view I am taking, it is not however necessary to decide this question.
15. It was finally contended that as the debt was found to be true and subsiting it is binding on the debtor, the late Swami personally and a decree should therefore be given against his personal assets if any. There is no express prayer to this effect in the plaint, but the defendant's Vakil does not object to such a decree being passed and I think therefore such a relief may be given.
16. In the result the decree of the lower Court is modified by confining it to a decree only against the personal assets, if any, of the late Sirur Swami in the defendant's hands. The plaintiff will pay the defendant's costs in both Courts as he has failed in his claim against the Mutt but he will get his costs from the personal assets of the late Swami.
17. The plaintiff is the Swami of the Admar Mutt in Udipi (South Kanara District). The defendant is the Swami of the Sirur Mutt in the same p|ace. He is now a minor represented by a guardian ad litem. These two and six other Mutts were founded, according to tradition, by Madhwacharya, the founder of the dual or dwaita philosophy. Each Mutt is presided over by a Sanyasi or Swami and has its own separate endowments. Besides the eight Mutts, there is, at Udipi, a temple of Krishna with income of its own. Each Swami takes charge of the temple for a period of two years so that the turn( technically called Pariyaya) of a particular Swami recurs once in sixteen years. The evidence in the case respective Pariyayas in recent times on a grand scale. It is said that the defendant's predecessor had borrowed from the plaintiff among others for the expenses of the last Pariyaya of the Sirur Mutt (January ,1914-1916) and on accounts being shows that the Swamis have taken to the celebration of the taken, it was found that the Sirur Swami was indebted to the plaintiff to the extent of Rs. 15,971-10-8 on the 14th August, 1916 (Ex. A). The present suit is brought to recover the said amount with interest. The Subordinate Judge gave a decree to the plaintiff and the defendant appeals.
18. The appellant has not pressed before us the grounds relating to the genuineness of Ex. A. He confined himself to two points (1) that the debt has not been shown to be for justifiable necessity and is therefore not binding on the defendant's Mutt and (2) in any event the Mutt is not liable as the debt was not charged on the properties of the Mutt.
19. The first point was the subject of the 2nd issue. The evidence of, the plaintiff's 3rd, 4th and 7th witnesses shows that the Krishna temple gets a Tasdick (or allowance) of 13 thousand rupees from the British and Mysore Governments, Rs. 500 cash and 500 Muras of rice (after paying Government Revenue) from its immoveable property and Rs. 10,000 or more by way of offerings from pilgrims. (A mura of rice is said to be worth Rs. 6). The item of offerings from pilgrims is a variable figure. The income of the Krishna temple may be taken to be about Rs. 26,500 per annum in the years in question. The income of the Sirur Mutt according to P.W. 4 is 2,200 Muras of rice (out of which 1,200 Muras are spent for the ordinary expenses of the Mutt) and a cash relit of Rs. 7,000. There remains a net income of Rupees Thirteen Thousand. Accepting these estimates, the combined income of the temple and the Mutt amounted to Rs. 39,500 per annum. It is said that this income was not adequate for the expenses of the Pariyaya and the Sirur Swami had to borrow for defraying them. A list of his debts amounting to Rs. 25,000 is given by P.W. 4. As the Sirur Swami had, in his hands, savings to the extent of Rs. 30,000 he must have spent more than a lakh and thirty thousand rupees towards his Pariyaya expenses. The question is whether this expenditure can be regarded as justified so as to make the Mutt in the hands of his successor liable for the amounts borrowed. It is conceded for the plaintiff (P.W. 4) that there is no rule to the effect that a particular amount should be spent for the Pariyaya. But all the Viniyogas should be performed without omission according to mamool.
20. P.W. 3 says that two lacs of rupees are required for the expenses. P. W. 4 similarly says that 15,000 Muras of rice and one or one and quarter lakhs of rupees are required. P. W. 8 the Swamiar of another Mutt gives details. About 1 15,000 Muras of rice, firewood costing Rs. 6,000, plantain tree garden costing 500 Muras and provisions costing Rs. 62,000 are required. Of these about 12 Muras of rice are required for the Naivedya (see P.W. 4) the ceremony of dedicating food to the deity. After the formal dedication the food is distributed to Brahmins. Now, it is well-known that the religious ceremony of the Naivedya can be performed at an expense of an anna or Rs. 10,000 according to the capacity of the worshipper. This is conceded by the learned Vakil for the plaintiff. No Hindu text has been cited to show that a particular quantity of food must be offered for the Naivedya. It depends on the capacity and the charitable disposition of the worshipper for the offering ultimately feeds the poor. Beyond the evidence that P.W. 8 spent a similar amount for his Pariyaya and that the deceased Sirur Swami contracted a debt of thirty thousand rupees for an earlier pariyaya there is nothing to prove a mamool or usage. The eighth witness says that, at the Pariyaya festival (first fifteen days of the period) about 10,000 persons were fed every day. During the other festivals about 2,000 persons are fed per day and 1,000 persons are fed daily at other times (see P.W. 4). It is obvious that the feeding charges have been responsible for the enormous increase in recent times of the pariyaya expenses. It is idle to pretend that the feeding could have gone on anything like this scale in all the six centuries during which these Mutts existed or even in the earlier years of the last century. When the witnesses say that so many muras are required for the expenses, all that they mean and could mean is that the quantities stated are required, if the festival is to be carried on in the manner the Swamis are now doing it.
21. In my opinion no usage or custom is proved. As theirLord-ships of the Privy Council point out in Palaniappa Chetti v. Sreemath Deivasikamani Pandara Sannadhi 33 M.L.J. 1 (PC), it would be an instance of the misapplication of the word ' custom ' and forgetfulness of essentials of a custom which modifies the ordinary law to say that the Mutts are bound by custom to feed every Brahmin that comes to the Pariyaya (as is stated in the South Kanara Manual). The numbers may increase as the years roll on and the result of carrying out the ideal of feeding every one that comes may be the destruction of the institutions themselves. The Swamis have a wide power over their income and Courts do not ordinarily scrutinise their manner of exercising it so long as they do not seek to bind their successors. If a successor is sought to be bound the borrowing must be for justifiable necessity.
22. In Abhiram Goswami v. Shyama Charan Nandi 19 M.L.J.529 (PC) , their Lordships of the Privy Council observe: ' It is well settled that the power of the Mohant to alienate debuttar property is, like the power of the Manager for an infant heir, limited to cases of unavoidable necessity ' citing Prosunna Kumari Debya v. Golap Chand (1875) L.R. 2 I.A.145 : and Doorganath Roy v. Ratnachander Sen (1876) L.R.4 I. A. 52 In these two cases, the leading case of Hanuman Prasad (1856) 6 M. I. A. 363(a case dealing with the manager of an infant heir, was relied on as a guide in respect of dealings with debuttar property. See also Vidya varuthi v. Baluswami Iyer 41 M. L. J. 346. The present appeal is not a case of conferring benefits to the estate such as the preservation of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deteriotions by inundation and such like things see Palaniappa Chetty v. Sreemath Deivasigamani I.L.R. (1917) Mad. 709 . In Peary Mohun Mukherjee v. Narendra Nath Mookerjee I. L. R.(1910) C. 228 the expenses in respect of which the shebait sought, re-imbursement were either incurred in defending his position as shebait or performing the obligation imposed upon him by the original will. In this case there is noprrof of the obligation imposed upon the Mutts at the time of the foundation. The learned Vakil for the plaintiff relies on the following sentence in Saminatha Pandara v. Sellappa Chetti I.L.R (1879) M.175 ' Acting for the whole institution he may contract debts for purposes connected with his mattam and debts so contracted might be recovered from the mattam property and would devolve as a liability on his successor to the extent of the assets received by him. I do not think that the learned Judges who decided Saminatha Pandara v. Sellappa Chetti I.L.R. (1879) M.175 or the Judicial Committee who quoted the whole paragraph in 1 LR. 44 Mad. 831 for a different purpose, meant to lay down that a debt however extravagant and unnecessary it may be, incurred in the performance of festivities and ceremonies of the mutt, are binding on the mutt in the hands of a successor. Such a position would be inconsistent with the ratio decidendi of 2 I. A 145 and 4 I.A. 52 applied to mutts in I.L.R. 36 Cal. 1003 and Palaniappa Chetty v. Sreemath Deevasikamani Pandara Sannadhi (1917) I.L.R. 40 M.709 (PC) In Murugesan Pillai v. Manikavasaka Desi-ka Gnana Sambhanda Pandara Sannadhi I.L.R. (1917) M. 402 it was found that the head of a mutt at the very outset of his career, was handicapped by two litigations costing nearly two lakhs. In my opinion, the suit debt is not binding on the mutt and this is the conclusion of my learned brother Coutts-Trotter, J. and myeslf in S.A. No. 1899 of 1920 (a case relating to a debt of the same Mutt incurred for the same pariyaya of 1914-1916). In Lakhsmindra Thirthaswamiar v. Raghavendra Rao I.L.R. (1920) . M. 795 and Srimath Deivasikamani Pandara Sannadhi v. Noor Mahomed Rowthan 17 M.L.J. 583 the cases came up on Second Appeal with a finding that the debt was incurred for necessary purposes. It may be that the law was too narrowly laid down in Vidyapurna Tirtha Swami v. Vidyanidhithitha Swami I.L.R. (1904) M. 435, but this was set right in Sreemath Deivasikhamony Pandarasan-nadhi v. Palaniappa Chettiar I.L.R. 34 Mad. 539 (affirmed by the Privy Council in I.L.R. 40 Mad. 709.).
23. It is said that the Swami of Sirur Mutt spent Rs. 20,000 for the repair of Bhojanasala. Apart from the fact that it is the duty of all the Swamis of the eight Mutts to contribute to the expenses of repairing the dining hall, the fact that an extension in the form of an upstair was added to the old building disentitles the plaintiff from relying on this item. It is also ' conceded that only Rs. 1,000 out of the suit loan was spent on this item. I do not think this aspect of the plaintiff's case improves it.
24. Some complaint was made for the respondent that the question of justifiable necessity was not taken in the first Court. I think it was taken in para 3 of the written statement. If this paragraph is not more explicit, this was because the allegation in the plaint is not more explicit and makes no reference to Pariyaya. The plaintiff had to prove necessity (on the 2nd issue) and was not prejudiced by any vagueness in the plea in the written statement. The defendant was not the borrower and was not bound to plead more clearly. In view of the conclusion on the first point, I do hot think it necessary to express an opinion on the second point on which there is some conflict of opinion in this Court. The cases in I.L.R. 31 Mad. 47 and Sundaresan Chettiar v.Viswanatha Pandara Sannadhi I.L.R. (1922) Mad. 703 are against the appellant but he is supported by the decision in Swaminatha Aiyar v. Srinivasa Iyer (1917) 5 L. W. 323. A number of English decisions have been cited before us, relating to trusts and trustees (Strickland v. Symons 26 Ch. D. 245 In re Johnson: Shearman v. Robinson 15 Ch.D. 548 (Jessel, M.R. ) Forhall v. Forhall 7 Ch.D. 123, In re Robinson's Settlement: Gant v. Hobbs (1912)1 Ch.717 in effect reversing Watching v. Lewis (1911) 1 Ch.414. After the expression of opinion in Vidyavaruthi v. Baluswami 'Aiyar I.L.R, (1921) M, 831 that Mutts are not in the nature of trusts in English Law it is not profitable to discuss these cases.
25. In the result the appeal is allowed so far as the Mutt properties are concerned. But the plaintiff will be entitled to a decree for the suit sum against the assets of the late
26. Swamiar in the hands of the defendant such as uncollected arrears since collected or investments of the late Swami which have-not been incorporated with the Mutt properties. I agree with my learned brother's order as to costs. A.S.V. Decree modified.