R.C. Mitter, J.
1. The subject-matter of the suit in which the appeal arises is a tank belonging to a deity Sri Sri Bishalakshi Thakurani. In 1907 one Abhoy Charan De purporting to act as a managing shebait granted a mourasi mokorari lease of the said tank to four persons, Annada Prosad De and others at a rental of Rs. 15 per year. Abhoy Charan De died in 1910 when another person became the managing shebait. In 1916 the original lessees, Annada and others, or their heirs as the case may be, sold their leasehold interest to Gostha Behari De, the plaintiff in the suit. In 1932 the villagers of the village claimed the deity to be a village deity and appointed a committee to look after the affairs of the said deity. Two members of the committee let out the said tank to defendant 34.
2. It is the plaintiff's case that in 1934 he was dispossessed by defendant 34 aided by the members of the said committee. In 1936 he instituted the suit for declaration of his title as a mokorari mourashi tenant of the said tank, for possession and for mesne profits.
3. One of the defences raised in the suit was that the deity was a village deity. That defence was negatived and it was found that the deity was a family deity of the Deys of that village. That defence has not been repeated either before us or before our learned brother Lodge J.
4. The suit had a chequered history. The learned Munsif decreed the suit in part by making a declaration of title in favour of the plaintiff and giving him possession. But no decree was given for mesne profits. An appeal from his decree was heard by Mr. Roxburgh as he then was, who affirmed the decree of the trial Court. There was a second appeal to this Court by some of the defendants, being S.A. No. 1563 of 1987. It was heard by Sen J., who set aside the decision of Mr. Roxburgh, as he then was, and remanded the case to the lower appellate Court giving specific directions regarding two points. He asked the lower appellate Court to record findings on the question as to whether there was a legal necessity for granting the lease which Abhoy gave in the year 1907 to Annada and others; and (2) whether Abhoy as managing shebait of the deity had the power to grant the lease.
5. The learned Subordinate Judge of Howrah heard the matter after remand. He came to the conclusion that there was legal necessity for the said lease; that Abhoy was the managing shebait, and had, as such, the power to grant leases without the concurrence or consent of the other shebaits.
6. Against the judgment and decree of the learned Subordinate Judge some of the defendants preferred an appeal to this Court being Second Appeal No. 58 of 1943. That appeal was heard by our learned brother Lodge J. who allowed the appeal, but at the same time granted leave to file an appeal under the Letters Patent. The Letters Patent appeal was filed. It is No. 24 of 1944, which is now before us.
7. Lodge J. agreed with the lower appellate Court that there was legal necessity for the lease. He repelled the argument of the appellants to the effect that the lease was void inasmuch as all the shebaits had not granted the same. But he allowed the appeal on two grounds. First, that the lease granted by Abhoy alone was invalid inasmuch as in law a trustee cannot delegate his powers to a co-trustee in any matter concerning the trust estate and that principle was applicable to shebaits. The second ground on which he allowed the appeal was that the lease could not be upheld because the lessees were some of the shebaits of the idol. For the reasons, hereinafter appearing, we cannot agree with our learned brother Lodge J.
8. In the plaint the plaintiff stated that Abhoy Charan De who had granted the lease in the year 1907 was the managing shebait and that in this institution the managing shebait had the power to grant leases.
9. The case of the plaintiff was not that Abhoy Charan De was exercising the powers delegated to him by the other co-shebaits in the matter of the lease. The first ground on which the second appeal, was allowed cannot, therefore, in our judgment be sustained.
10. We have already stated that our learned brother Lodge J. held that where there are several trustees, it is not the law that all must join when a trust estate or a part thereof was being alienated. Although shebaits are not strictly trustees it has been held in a series of cases that the same principles, which are applicable to trustees, are applicable to shebaits in the matter of alienations and bringing of suits and one of those principles is that where there are several trustees all of them must act together, We need not refer to the several cases on the point. They proceed upon the principle that had been laid down in Huddersfield Banking Corporation v. Lister and Son (1895) 2 Ch. 273 Nearly all the cases are reviewed in Kokilasari Dasi v. Rudrauand Goswami ('07) 5 C.L.J. 527.
11. The second proposition is that a manageing shebait has ordinarily the powers of management only, that is to say, to manage the worship and carry on the day-to-day administration of the affairs of the deity. But in a particular debattar, the managing sebait may have larger powers. For instance, the deed of dedication itself may give him larger powers and by its terms define those powers, and if it did there would be nothing illegal in it.
12. When the appeal came on for hearing before Mr. Roxburgh as the Additional District Judge of Howrah he did not enter into the question as to whether Abhoy had the power to grant the lease without the consent or the concurrence of his co-shebaits. Our learned brother Sen J., pointed out that the mere fact that a person was a managing shebait would not necessarily give him the power to alienate the debattar property by way of sale, mortgage or lease. He remanded the case with the express direction to the lower appellate Court to find out as to whether in this institution the managing shebait had the power to grant leases. The learned Subordinate Judge after remand reviewed the evidence and came to the conclusion that Abhoy as managing shebait had the power to grant the lease. Sen J.'s judgment clearly indicated that that question is to be investigated on the facts of this case and the learned Subordinate Judges came to that conclusion after discussing the evidence. The question, therefore, was a question of fact and was treated as a question of fact. In second appeal that finding can only be revised if it be found that there is either no evidence in support thereof, or it is based on evidence which is inadmissible in law. The finding of the learned Subordinate Judge that Abhoy had as managing shebait the power to grant the lease, is a finding of fact which was not open to revision in second appeal.
13. The nest question is the question of legal necessity. On this point also there is a finding of fact based on evidence. The learned advocate appearing for the defendants respondents has urged that in arriving at his finding the learned Subordinate Judge misconceived the evidence of defendants' witness No. 7. We cannot agree with that contention. The plaintiff's case of legal necessity is that the endowment had very little income. Money was required for the purposes of paying the debts incurred on account of a litigation which the deity had with a third party and for re-excavating the tank. In support of his case he led oral evidence and also put in an old fard, Ex. 6. The effect of the oral evidence and of the fard is that the selami which was obtained on the grant of the lease of 1907 was utilised for those two purposes. The learned Subordinate Judge laid great emphasis upon Ex. 6, which he found to be a genuine document. Defendants' witness No. 7 stated in his evidence that the debattar had very little income, that the tank was re-excavated twice, once in the year 1896 and another about the year 1926 or so, ten or twelve years before his deposition. He did not admit the re-excavation about the time of the lease. Having made the statement that there was no appreciable income of the debattar estate he said that for the purposes of meeting the costs of the re-excavation money was raised: and the case that he made was that for the re-excavation, which was made forty years back, that is to say, in the year 1896, money was raised on a usufructuary mortgage from one Bhutnath, who repaid himself, by taking the usufruct of the tank for about 12 years. The cross-examination of this witness makes it quite clear that he was very unfriendly to the plaintiff. He admits a crop of criminal cases between him and the plaintiff, or between others and the plaintiff in which he deposed for the plaintiff's opponents and all those cases resulted in the acquittal of the plaintiff. The learned Subordinate Judge's language when dealing with the evidence of this witness is a little unhappy. But Xl what the learned Subordinate Judge meant to say was that as the debattar property had little income, money had to be raised for re-excavating the tank, that the tank was in fact re-excavated, but be could not believe that part of the statement of the said witness which implied that the tank was not re-excavated about the year 1907 but ten years earlier and not with the money which was the selaml of the questioned lease, but with the money advanced by Bhutnath on a usufructuary mortgage. The finding of the learned Subordinate Judge after remand that the lease was for legal necessity is a finding which is not open to revision in second appeal In fact Lodge J. refused to revise that finding, but the respondents before us asked us to revise the finding on the ground that the learned Subordinate Judge misread the evidence of defendants' witness No. 7 although in arriving at his finding the learned Subordinate Judge relied on other evidence the credibility of which cannot be challenged in second appeal.
14. We will now have to deal with the second reason on which Lodge J. allowed the appeal. That reason is that as the lessees were themselves some of the shebaita the lease itself was invalid. In the written statement this defence was not specifically taken but a vague statement was made. The statement is that the lessees had not the legal capacity to take the lease. No issue was raised at the trial Court and there was no discussion of this point before it. The point was first formulated in appeal in a definite shape before Mr. Roxburgh, as he then was, who noticed it but overruled the same. The defendants, preferred the second appeal which was heard by our learned brother Sen J. It does not appear from his judgment that the point was seriously pressed before him because there was no indication given in his judgment. But we are not giving any weight to the fact that the point does not appear in the judgment of our learned brother Sen J. We think that the point ought not to have been allowed to be raised at the appellate stage either before Mr. Roxburgh, as he then was, or before Lodge J. who decided the second appeal. The principles which govern alienations by trustees are applicable to alienations by shebaits. That proposition is now settled beyond doubt by the decision of the Judicial Committee in Kaja Peary Mohan Mukerji v. Monohar Mukerji 9 A.I.R. 1922 P.C. 235. It is therefore necessary to examine those principles. The sale by a trustee for sale to himself or to a benamidar of his is absolutely invalid. The reason being that a man cannot both be the vendor and the purchaser. But in other cases there is no absolute bar to a purchase by a trustee A trustee can buy from the cestui que trust. There is no absolute bar but such a purchase would not be upheld by the Court unless the purchaser trustee shows, and the onus is on him, that he did not take advantage of his position as trustee and made the fullest disclosure at the time of the bargain. A trustee cannot also place himself in such a position where there may be a possibility of conflict between his interest and his duty. Such being the law, questions of fact would necesarily enter into the picture where a purchase by a trustee other than a trustee for sale is challenged. If the case is to be regarded as a case of purchase by a trustee from the cestui que trust the purchaser trustee should have the opportunity to show that he made full disclosure and dealt with the transferor (the managing trustee) at arm's length. Even for the purposes of showing that there was a possibility of conflict of interest and duty it may be necessary to investigate facts. We are accordingly of opinion that this ground on which the judgment of Lodge J. was rested ought not to have been allowed to be raised at the appellate stage, seeing that if the ground had been taken in that specific form in the Court of first instance there might have been an answer by the plaintiff on facts.
15. We accordingly allow this appeal and restore the judgment and decree of the trial Court. The plaintiff will be entitled to costs throughout.
16. I agree.