1. The first of these cases, Appeal No. 159 of 1904, was remanded to the subordinate Court for further evidence as to the circumstances under which the loans in question were contracted. The record of the evidence runs to very great length, but much of it consists of minute and wearisome cross-examination about unimportant matters which has not been referred to in argument and has only served to waste the time of the Court below and saddle the parties with unnecessary expense. Unfortunately, there has been great delay in the hearing of this appeal but that has had this advantage that we have been enabled to deal with two other appeals against another decree of the Subordinate Court, in which the evidence taken on remand in this case has been treated as the evidence in the case, because both suits really have raised practically the same questions and one judgment will suffice for the decision of both and in giving our own conclusions on the evidence taken on remand we now have the advantage of the careful consideration of the evidence by the Subordinate Judge and of the conclusions at which he has arrived.
2. The question in the two appeals relates to the liability of the Dharmapuram Mutt for certain borrowings by late leader, Pandara Sannadhi. It appears that there had been a lengthy litigation as to the right of the Dharmapuram Mutt to nominate the head of the Tiruppanandal Mutt. This was decided in the time of the last Pandara Sannadhi but one. Before his death, he nominated one Ponnambala to be the head of the Tiruppanandal Mutt; he died before the investiture of the nominee. His successor, Sivagnana, who is also dead, set up that the nomination was incomplete and the nominee unfit and a lengthy litigation ensued in which Sivagnana's nominee, Saminatha, was for a time successful, with the result that for some years he obtained possession of the Tiruppanandal Mutt's properties. Ultimately, however, a decision of the Privy Council was given against him in the year 1394 and execution was taken out and he was called upon to account for and to deliver over to his opponent, Ponnambala, the properties of the Tiruppanandal Mutt which had come into his hands. This was the state of things when the transactions which have given rise to the present litigation arose.
3. The first transaction we have to deal with is the borrowing of two sums of Rs. 7,000 and Rs. 3,000 by the Pandara Sannadhi of the Dharmapuram Mutt on promissory-notes, dated the 26th November 1894. One of them is in issue in Appeal No. 159 and the other in Appeal No. 85. In the second suit, it is sought to declare that a mortgage decree obtained against the deceased Pandara Sannadhi is not binding on the properties of the mutt, and it has not been disputed before us that such a suit will properly lie if the facts are such as are stated. With regard to this borrowing of Rs. 10,000, neither of these promissory-notes say for what purpose the money was borrowed. It is merely recited that it was for Mutt purposes. The case of the plaintiffs in the one case and the defendants in the other, whom it will be convenient to speak of as the creditors, is that it was borrowed for the purpose of necessary buildings in the Mutt. There were three such buildings mentioned in the evidence, namely, the puja mantapam, central hall and the kitchen. The Subordinate Judge has given good reasons for disbelieving the evidence that any such expenditure was contemplated at the time this money was borrowed in November 1894. There are the accounts of the mutt, Exhibit CC series, which show that the expenditure on the kitchen did not begin till July 1895 and Exhibit CC6 only shows an expenditure of Rs. 11 on the central hall in 1895 and Exhibit CC5 shows that the puja mantapam bad been finished in March 1894. Of the four witnesses of the creditors, two are their dependents. The only conclusion that can be come to is that it is not satisfactorily shown that there were any buildings going on or contemplated and consequently that it was not necessary to borrow any money and that the creditors have failed to show that there was any necessity for borrowing this Rs. 10,000 for building. They have also failed to show that they made any satisfactory inquiries. The Mutt contends further that it is actually shown by the accounts that this sum of Rs. 10,000 was utilised to help Saminatha to make payments into Court in respect of the monies of the Tiruppanandal Mutt, for which he had become accountable in execution Petition No 79 of 1894, already referred to. This is exceedingly probable but it is not necessary to decide the point definitely. It is quite sufficient for the disposal of this case to say that the creditors have not succeeded in discharging the onus which was upon then of showing that these monies were borrowed for the purpose of erecting necessary buildings and that they have no evidence showing they had any good reason for believing the money was borrowed for these purposes.
4. The next sums, with which we have to deal, are two sums of Rs. 9,713, part of the consideration of a mortgage bond, dated 12th November 1895, and Rs. 25,000 part of the consideration of another mortgage bond dated 11th November 1895. In these mortgage bonds, it is recited that this money was borrowed by the Pandara Sannadhi for mutt buildings and for the purpose of a deposit in Court. One of the creditors witnesses did in one part of his evidence go so far as to say that part of it was used for the mutt's building purposes, though in another part he said it was all used for the deposit in Court; bat in the lower Court, it was admitted that the whole of this money was used for the deposit in Court and we have arrived at the same conclusion on the evidence. The circumstances of that deposit are as follows: as I mentioned, an Execution Petition No. 97 of 1894 had been put in against Saminatha Tambiran with the view of making him accountable for the property of the Tiruppanandal Mutt, which had come into his hands while he held the office of its head. In answer to that, he put in a statement showing how he had dealt with the property of the mutt and, among other things, suggested that Rs. 40,000 had been given by him as Pada Kanikkai to the then head of the Dharmapuram Mutt. The Subordinate Judge in Exhibit III refused to accept this story and held that the gift was invalid and that Saminatha was bound to pay this sum of Rs. 40,000 to Ponnambala. The successful Tambiran Ponnambala then proceeded to attach this money which according to Saminatha was in the hands of the Pandara Sannadhi and he obtained a prohibitory order prohibiting the Pandara Sannadhi from parting with it. The Pandara Sannadhi was a party to the suit and the decree had ordered him to give investiture to Ponnambala, but he had not so far been concerned with the proceedings which led up to the prohibitory order. When it was served upon him, he put in a claim petition, Exhibit VIII, in April 1895, in which he set up that a Pada Kanikkai of Rs. 40,000 had really been given to him and that this money was his and, therefore, he asked for the removal of the attachment. The next thing we find is that Saminatha put in a petition, Exhibit X, dated 3rd August 1895, headed Ponnambala Tambiran v. Saminatha Tambiran in which he stated that certain persons had been appointed mediators and a peaceful arrangement made whereby it was agreed (amongst other things) that 'as the balance of Rs. 45,660 has been arranged to be paid by the Dharmapuram Adhinam Sivagnana Desikar Gnana Sambanda Pandara Sannadhi and he has also agreed to pay to the petitioner, he requires two months to make up the said amount.' The petition, therefore, prayed for an adjournment of the execution proceedings for two months.
5. The next thing we came to is Exhibit IX, dated the 3rd day of October 1895, vakalat given by the Pandara Sannadhi to a Pleader, in which he states that he had agreed, as a matter of grace, to pay Rs. 45,000 to Pandara Sannadhi on behalf of Saminatha. Exhibit D of the 3rd October 1895 is the compromise petition which was put in two days later by Ponnambala and Saminatha--'Petition put in by both the parties aforesaid. It says 'that as the Dharmapuram Adhinam Gnana Desika Sambanda Pandara Sannadhi Avergal has consented to deposit in Court, on behalf of the counter-petitioner (that is Saminatha), this sum of Rs. 45,000 before the 25th November ensuing, that be do pay the said sum accordingly and that as soon as the said sum is so deposited, the Court do remove from file as satisfied the said execution proceedings which is pending, that the petitioner has no objection whatever to the decree amount which has been ordered on the 4th February 1895 being certified as satisfied in full.' That was on the 5th of October. On the 11th and 12th November, as I have already said, the Pandara Sannadhi borrowed these two sums of Rs. 25,000 and Rs. 9,000. On the 22nd of November, he paid Rs. 45,000 into Court and obtained a receipt which is Exhibit PP; and Exhibit QQ, the execution proceedings show that on the following day the execution petition was struck off as satisfied. Now the question is whether the Dharmapuram Mutt can be held liable for these loans which were raised by the then Pandara Sannadhi for the purpose of making these payments into Court in November 1895.
6. It is alleged on the part of the creditors that this payment was made in pursuance of a compromise of a doubtful claim and that, therefore, it is binding upon the mutt. But, in order to establish this position, it would be necessary to show that there was a bona fide claim that the mutt itself was liable for this payment. I cannot find in the whole of these proceedings any trace of any allegation of this sort having been put forward. What was stated at first was that Rs. 40,000 had been paid as a present to the Pandara Sannadhi personally. The Court refused to recognise that payment and attached the money in the hands of the Pandara Sannadhi as being the property of the Tiruppanandal Mutt. The Pandara Sannadhi put in a claim saying that it was his property. Then there was this petition of August reciting this mediation. In this mediation, nothing was said of any liability of the mutt itself. It was merely recited that it had been arranged that the Pandara Sannadhi should pay. Now, what was this mediation? This was a mediation between Ponnambala and Saminatha. Take it, if you will, that it was also a mediation between Ponnambala and the Pandara Sannadhi as well, as he was claiming for his own the Rs. 40,000 which he said had been given for a present, but there is nothing on the face of the document or otherwise to show that there was at that time any claim whatever against the Dharmapuram Mutt itself. Then we have this vakalat which was given by the Pandara Sannadhi on the 3rd October, in which he ignores the existence of any legal claim against himself even, to say nothing of the mutt, and simply says that, as a matter of grace, he had agreed to pay this amount. The whole proceedings took place upon that basis and I cannot see how in this mediation there was any bona fide claim against the mutt. If there had been any bona fide claim against the mutt, one would expect that it should have bean indicated clearly. There was nothing of the sort in any of the documents relating to that compromise. It is only when we come to the mortgage deeds of 11th and 12th November, by which the suit amounts of Rs. 9,000 and Rs. 25,000 were raised towards the Rs. 45,000, that we find any thing to suggest any liability on behalf of the mutt. Exhibit A says: 'Amount received by us in cash from you before the Sub-Registrar for the building expenses of the Dharmapuram Mutt and for the payment into Court on behalf of Saminatha Tambiran, who was the head of the Tiruppanandal Mutt attached to the Athinam in pursuance of orders passed on the 4th February 1895 by the Sub-Court of Kumbakonam on Miscellaneous Petition No. 79 of 1394, relating to the execution proceedings in Original Suit No. 38 of 1881 on the file of the said Court, by reason of the amount given to us as Pada Kanikkai by the said Saminatha Tambiran having been paid away to Sakkaram Saheb Avergal of Tanjore palace, Nattukottai Murugappa Chetti and others to whom debts had to be paid by our Athinam, is Rs. 9,713.' In these mortgages, the only ground of liability suggested against the mutt from parties is not that there had been any claim by Ponnambala against the mutt, but it is said that the Rs. 40,000, which had been received from Saminatha by the Pandara Sannadhi, had been devoted to defraying these particular debts which it is now said were binding upon the mutt, The Subordinate Judge has examined the evidence in this matter and be finds that there is no satisfactory evidence at all that any such sum of Rs. 40,000 was paid as Pada Kanikkai to the Pandara Sannadhi. The first we hear of it is in the statement pat in by Saminatha in answer to the execution petition. He said that this present had been made in two sums of Rs. 20,000 each. There is some evidence of an unsatisfactory character that a present of 1,008 sovereigns was made. There is no evidence as to how the balance was paid. The payment of 1,008 sovereigns is different from the payment of Rs. 20,000. Further, there is absolutely no entry in the accounts of the Tiruppanandal Mutt of any such Pada Kanikkai having been paid, although it ought to be there if really made as other similar payments are to be found there. There is some other evidence that the Paudara Sannadhi on one occasion admitted having received Rs. 50,000 as Pada Kanikkai. I think that the Subordinate Judge was quite right in holding that no payment of Pada Kanikkai was proved. It may, of course, be that money belonging to the Tiruppanandal Mutt had been secretly deposited by Saminatha with the Paudara Sannadhi for the purpose of safe custody or of secreting it or for any other purpose but it is not shown that any such payment was made. There is great vagueness in the evidence as to the date of this alleged Pada Kanikkai but the case is that it was either in the end of 1891 or the end of 1892. I say it is possible that money may have been deposited by Saminatha in the hands of the Pandara Sannadhi but it would appear that any such sum must have been deposited after August 1391, because the Tiruppanandal accounts are made up to that date and there is no entry in them of any such payment. There is no reason to doubt the correctness of these accounts and if any payment was made it must have been found there; so that the conclusion which the evidence points to is that whatever payment was made to the Pandara Sannadhi was made after August 1894. If that be the case, it altogether cuts the ground from under the story set up in the two mortgages that this money was utilised for the payments on account of decree debts due to Sakkaram Saheb and others, because the evidence is that those payments were made, Rs. 25,000 in June of 1892 and Rs. 7,000 in May 1894. It follows then that the creditors have failed to show that any of the funds which may have come into the hands of Pandara Sannadhi from Saminatha were applied for purposes binding on the mutt. If they had been so applied, it would have been only fair to uphold the action of the Pandara Sannadhi in subsequently raising money to repay it. But that is not proved; the creditors have failed to prove either that there was any bona fide compromise of a doubtful claim against the mutt or that the moneys said to have come into the hands of Pandara Sannadhi belonging to the Tiruppanandal Mutt were applied for the purposes of the Dharmapuram Mutt, The result is that as regards the two items, the Appeal No. 159 of 1904 must be allowed with costs throughout.
7. As regards the Appeals of 1910, the plaintiff, the present head of the Dharmapuram Mutt, is entitled to the declarations prayed for that the sum of Rs. 3,000 borrowed in November 1894 and the sum of Rs. 25,000 borrowed in November 1895 are not binding on the Mutt.
8. But there is a farther sum included in the mortgage which is also the subject-matter of the suit, namely, a sum of Rs. 8,792, which the Subordinate Judge has upheld. Some part of this money consists of an item of indebtedness incurred daring the life-time of a previous Pandara Sannadhi, which was treated as binding by the succeeding Pandara Sannadhi and we think that the Subordinate Judge was right in holding that this fact is enough to raise a presumption that these debts were properly binding on the mutt and as there is nothing to rebut that presumption in the evidence, they must be held binding.
9. But there was another item of Rs. 3,500, which was borrowed by the late Pandara Sannadhi in the year 1839 as to which no such presumption exists and as to which I am of opinion that the creditor has failed to discharge the onus which is upon him of showing that the money was borrowed for necessary purposes. Two purposes are alleged, first that it was borrowed for mutt buildings, a very favourite pretext for borrowing money. Now, there is only one witness as to that, (D.W. No. 4,) and he has been disbelieved as to other matters by the Subordinate Judge and he gives a very vague and unreliable account and I think it is quite unsafe to act upon his evidence. Then, it is alleged and with much greater probability that this money was really borrowed for the purpose of the litigation which was being carried on by the Pandara Sannadhi against Ponnambala, the nominee of his predecessor to the Tiruppanandal Mutt for the purpose of declaring the nomination of his predecessor bad and upholding that of his own nominee, Saminatha. It has been urged before us that as a question arose as to whether a succeeding Pandara Sannadhi had a right to set aside a nomination to the Tiruppanandal Mutt, made by his predecessor before the nomination had been confirmed, the Pandara Sannadhi was justified in litigating it and in charging all the expenses of the litigation on the mutt property as to the liability of the mutt in the expenses of litigation. It seems to me that the true test to apply in a case of this sort is to say that each case must stand upon its own circumstances and that no general rule can be laid down. In the present case, as pointed out in the judgment of the Privy Council, the appointment of a head of the Tiruppanandal Mutt was governed by the terms of a decree of the Privy Council in an earlier suit. Under that decree, all that the Pandara Sannadhi had to do was to nominate; the appointment was vested in the Court and it was open to the Court before accepting the nomination to hear objections and decide whether the nominee was a fit and proper person. One of the grounds put forward by the Pandara Sannadhi was the unfitness of his predecessor's nominee but it is much more likely that his real object was to favour his own supporter Saminatha and to procure the office for him. However this may be, if matters affecting the fitness of Ponnambala, the predecessor's nominee, had come to light, it was open to him to bring these matters before the District Court in whom the right of appointment vested and to oppose the nominee. The mutt's right of nomination had already been vindicated and was in no way at stake. In these circumstances, it seams to me it cannot be considered to have been necessary in the interest of the mutt that the Panadara Sannadhi should launch upon a doubtful and expensive litigation for the purpose of deciding the question whether the nomination of his predecessor was binding on a succeeding Pandara Sannadhi, who succeeded before the nominee had been definitely appointed, or as to the fitness of the nominee. The people chiefly interested in that question, it seems to me, were the Pandara Sannadhi himself and his friend, Saminatha, who is said to have been instrumental in getting him appointed Pandara Sannadhi. I do not think that it was the sort of question which the Pandara Sannadhi was justified in litigating out of the mutt funds, I mean out of the corpus of the mutt properties, because what is now sought to be done is to charge the corpus, not the income of the mutt which, it is now settled, is at the disposal of the Pandara Sannadhi for the time being. I am of opinion that the corpus cannot be so charged and to that extent the appeal of the plaintiff in Appeal No. 85 must be allowed with costs.
10. There is one question raised in the Appeal of 1910 as to whether in this suit the plaintiff, Pandara Sannadhi, is entitled to have item three of the mortgage properly exonerated. It is now disputed that the property belongs to the Mutt Swami or idol, the Pandara Sannadhi being the trustee. The present suit was brought by the plaintiff as Pandara Sannadhi of the Dharamapuram Adhinan and not as trustee of the Swami and in the written statement an objection was taken that the suit was not brought as the trustee of the temple and an issue was settled as to whether the plaintiff was entitled to maintain the suit as to this item, he not having sued as trustee of the temple. No issue was taken as to whether the plaint could be treated as filed by the plaintiff as trustee of the temple as well as of the mutt. In these circumstances, we must hold that the objection is well-founded and this item must be excluded from the declaratory decree to which we hold the plaintiff is entitled. This will of course not in any way affect the rights of the temple which we treat as not before us, being not a party to this suit. In these respects, the decrees will be modified. In Appeals Nos. 91 and 85 of 1910, the parties will pay and receive proportionate costs on both sides.
Sanakaran Nair, J.
11. I agree.