1. The subject-matter of the litigation which has given rise to this appeal is a parcel of 4 bighas of Fakirana land which admittedly formed part of the endowed properties belonging to the Panapur Math. It appears that Mohant Siaram Das, the spiritual head of this endowment, died on the 12th August 1905. Upon his death, disputes arose as to the succession to the office of Mohant, and on the 27th Jane 1906, these disputes were settled among three rival claimants by name Baldeo Das, Jagar Nath Das and Saligram Das. The parties agreed that Baldeo Das would continue to be the Mohant during his life-time and that upon his death, Jagar Nath Das would succeed as Mohant of the two Asthals at Panapur Nariar and Berhampura while Saligram Das would succeed as the Mohant of the Asthal at Chapra Rupnath. It was further arranged, that, daring the life-time of Baldeo, Jagar Nath would be joint manager with him in respect of the two Asthals to which he would be entitled to succeed upon his death, while Saligram would be the joint manager of the Asthal at Chapra Roopnath to which; he would be entitled ultimately to succeed. This ekrarnama was duly registered on the 27th June 19G6 and contained an express provision that Mohant Baldeo Das would not have any right of alienation of the properties of the endowment. The deed further recited that the properties of the endowment were subject to considerable ancestral debts, that is, debts incurred during the management of the preceding Mohants, that if payment of the said ancestral debts necessitated the sale of any property. Jagarnath and Saligram, by joining with Baldeo in execution of deeds of sale in respect of the properties appertaining to the Asthals at Panapur Nariar and Berhampura and Chapra Roopnath respectively, would pay off the ancestral debts, and that if Jagar Nath and Saligram did not join in the execution of the deeds of sale, Baldeo Das would be entitled, upou giving notice, to execute deeds of sale under his own signature and pay off the ancestral debts thereby. It appears that, on the 9th April 1907, Bildao Das executed a conveyance in favour of the defendant-respondent in respect of the disputed property. The plaintiff commenced this action on the 8th April 1908 for declaration that the transfer was void and that he was entitled to recover possession. The defendant resisted the claim on the ground that the transfer had been executed for justifying necessity and that she had consequently acquired an in defeasible title to the property transferred.
2. The Court of first instance found that out of the consideration-money of Rs. 830 paid for the conveyance, it had been established that Rs. 254 had been applied in satisfaction of a debt incurred to meet the expenses of the sradh ceremony of Mohant Siaram Das that, as to the remainder, there was no satisfactory evidence to show that it was needed for the benefit of the endowment. In this view, the Court of first instance gave a decree to the plaintiff for recovery of possession upon payment of Rs. 254 with interest thereon, Both parties were dissatisfied with this decision and appealed to the Subordinate Judge. The plaintiff contended that he was entitled to recover the property without payment of any sum at all. The defendant contended, on the other hand, that the plaintiff was not entitle to recover the property under any circum stances. The Subordinate Judge has affirmed the finding of the first Court that Rs. 254 was needed for payment of the debt incurred at the time of the sradh of Siaram Das. As regards the remainder, he has found that it was also needed to meet the expenses of the management of the endowment. Upon these findings, the Subordinate Judge has held that the whole of the consideration money was applied for the benefit of the endowment and that the plaintiff was consequently not entitled to impeach the title of the defendant.
3. The plaintiff has now appealed to this Court aid, on his behalf, the decision of trio Subordinate Judge has been assailed on three grounds, namely, first, that the finding of the Sub-Judge upon the question of necessity cannot be supported, inasmuch as he had erronously thrown the burden of proof upon the plaintiff; secondly, that the facts found do not show that there was any justifying necessity for the alienation and, thirdly, that even if there was any justifying necessity for the alienation, the transfer was void as it was in contravention of the provisions of the ekrarnamah by which the transferor was bound.
4. In so far as the first of these contentions is concerned, there is, in our opinion, no substance in it. No doubt, ordinarily when a person takes a property from a limited owner and his title is impeached, the burden is upon him to show that he has acquired the property under circumstances which mike his tile unimpeachable. It was explained by their Lordships of the Judicial Committee in the case of Hanoman Persaud Panday v. Musammat B booee Munraj Koonwaree 6 M.I.A. 393 at p. 419 : 18 W.R. 81: 'No hard and fast rule can be laid down in cases of this description. The question, on whom does the onus of proof lie in such suits is one not capable of a general and inflexible answer. The presumption proper to be made will vary with circumstances and must be regulated by and dependent on them.' The Subordinate Judge has pointed out that, at the time the alienation took place, the plaintiff was joint management the properties of the endowment. He had special means of knowledge as to the funds available for the purpose of the management at the time. It was for him to prove that there was no necessity for the alienation made by the Mohant in possession. The first ground, therefore, must fail.
5. In so far as the second ground taken by the plaintiff appellant is concerned, it is, in our opinion, well founded. No doubt, as has been laid down by their Lordships of the Judicial Committee in the cases of Prosunno Kumari v. Golab Ohand 2 I.A. 145 : 14 B.L.R. 450 : 23 W.R. 253 and Doorganath v. Ram Chunder 4 I.A. 52 : 2 C. 341 and also by this Court in the cases of Sheo Shankar Gir v. Ram Shewak 24 C. 77 and Nawab Sir Syed Hossein Ali Khan v. Mohant Bhagwan Das 11 C.W.N. 261 : 34 C. 249 : 6 C.L.J. 442 the power of the shebait in respect of alienation, of endowed property is analogous to that of the manager of the property of au infant. Madho Prasad v. Ram Ratan 15 C.W.N. 833 : 14 C.L.J. 264 : 11 Ind. Cas. 507 : (1911) 2 M.W.N. 66 : 13 Bom. L.R. 780 : 21 M.L.J. 10 M.L.T. 481. It must be remembered, however, as pointed out. by the learned Judges of the Madras High Court in the ease of Sreenath Devasigamani Pandarasannadhi alias Nataraja Desikar v. Palaniapp Chetty 20 M.L.J. 969 : 9 M.L.T. 83 : 9 Cas. 281 that the needs of an endowment may be very different from the needs of a human being and the test to be applied to determine what is justifying necessity in the case of an endowment may not be the same as in the case of a human being. Mr. Justice Krishnaswami Ayyar observed in the case just mentioned: 'The shebait is in a position analogous to that of the guardian of an infant heir and he cannot alienate the corpus of the estate except for sufficient necessity. A decree can also be passed against the corpus of the property. A necessity justifying alienation of rent and income will not be such as will justify an alienation of the corpus. Alienation of the corpus ought only to be resorted to as an extreme measure in the absence of other reasonable means of providing for the needs of the endowment.' In the case before us, there is no finding by the Subordinate Judge that the needs of the endowment at the time the alienation was made might not have been met by other means than an absolute transfer of a portion of the endowed property. It is not enough to find that the sum paid by the transferee was applied for the purposes of the endowment. What has to be established to justify the alienation is that, fop the needs of endowment, no other means was available short of an absolute alienation of the property. We are, therefore, of opinion that upon the facts found by the Subordinate Judge, the sale cannot be supported. But as the sum advanced by the defendant has been applied for the benefit of the endowment, ordinarily the plaintiff would be entitled to ask the Court to vacate the sale only on condition that the sum paid is re paid to the vendor. Is has been contended, however, by the learned Vakil for the appellant that he is not bound to pay this money, because the sale is not merely voidable but void because it was made in contravention of the provisions of the ekrarnama. This leads us to the consideration of the third ground.
6. In support of the third ground, our attention has been invited to the Clause in the ekrarnama that Mohint Bildeo Das had no right of alienation. The learned Vakil for the respondent has contended with considerable force that, this implies that there was to be no right of alienation except for justifying necessity. He has argued that, if this view is not adopted, the result would be that the endowment might be hopelessly embarrassed in cases of necessity where the necessity could not be met for the income of the properties endowed. We are unable to accept this contention as well founded. If the construction suggested by the learned Vakil for the respondent be accepted, we have to insert in the deed words not to be found there. At the same time if the words proposed are inserted in the deed, the Clause in question becomes superfluous. It would then merely provide that the Mohant would not have any right of alienation except for justifying necessity. In other words, the effect of the deed would be what the ordinary law is in cases of alienation by Mohanh. Oft the other hand, it is clear that in exceptional cases of the description suggested by the learned Vakil for the respondent, it would be open to the parties to bring a suit for administration of the endowed properties, and part of the endowed properties could be alienated under the direction of the Court so as to save the endowment. We are, therefore, clearly of opinion that the alienation in this case was contrary to the express provisions of the ekrarnama and as it has been found that the defendant at the time of her purchase had notice of the provisions of the instrument, she is clearly bound by the terms thereof. The deed in favour of the defendant is, therefore, clearly void and the plaintiff is entitled to have the sale cancelled without re-payment of the consideration.
7. The result is, that this appeal is allowed, the decrees of the Courts below discharged and the suit decreed. But, under the circumstances of the ease, we are of opinion that each party should pay his own cuts in ail the Courts. We further declare that the plaintiff will not be entitled to any mesne profits up to the date of this judgment.