Chelliah alias Kariamanickam vs Rengaswami Aiyangar

Kuppuswami Ayyar, J.—The only point for consideration is whether the suit land is an inam land granted for service in a temple and as such

not alienable. The appellant is the defendant and the appeal arises out of a suit for enforcing a mortgage deed executed by his father in respect of

the plaint mentioned property. The appellant''s case was that the land was given to one of his ancestors as a service inam for rendering service in

the Vishnu, Siva and Pillayar temples, the service being Vyravi service, that is to say purchasing articles, etc., for the use of the temples and

cooking pongal in the Pillayar temple. The appellant examined himself and a cousin of his who is also enjoying another portion of the land rendering

similar service. Ex. I an old cadjan document was filed as evidencing the grant. The first Court presumed u/s 90 of the Indian Evidence Act the

document to be a genuine document as an ancient document of 1852, and the evidence of the witnesses showed that there was a service grant and

the defendant''s family we''re in enjoyment. The learned Subordinate Judge was of the opinion that the document which purported to be one

executed in the year Parithapi might have been executed in 1912 instead of 1852 as was contended for the defendant and, finding that it was not

proved to be of the year 1852, refused to presume it to be genuine; and he further stated that even if it was taken as evidence it was not enough to

indicate a grant but it would evidence an out and out alienation and at the most it would amount to an alienation burdened with service and

consequently the mortgage was valid and binding.

I do not think the learned Subordinate Judge was right in finding that the document was not proved to have been executed in 1852. From the

appearance of the document and also from the evidence of D.W. 1 that it was executed a long time ago to? his ancestor he ought to have found

that it was a document more than 30 years old and so genuine. Apart from the fact that it, was produced by D.W. 1 a cousin of the defendant

there are other circumstances which go to show that the document must have been genuine. It is recited therein that the grant was to, one Virugu

Dasan (an ancestor in the family) for performing the vyravi service in the Siva and Perumal temples and cooking pongal to Vigneswara. It is also in

evidence that defendant''s ancestors were blowing conch in the temples and it is said that they were getting four bundles of unthrashed paddy for

every mah of land for blowing conch. That the defendant and his ancestors and D.W. 1 have been blowing conch in these temples is also in

evidence. It is spoken to by a number of witnesses on both sides. In these circumstances I think the Subordinate Judge was wrong in finding that

the document was not genuine. If Ex. I is presumed to be genuine, the recitals in it and the evidence of D. Ws. and P. Ws. 2 and 3 are enough to

indicate that these lands have been enjoyed by the defendant, his cousin and, their ancestors as emoluments for performing service in the three

temples of the village.

The Subordinate Judge was of opinion that this is a case of a private land and that it could not be held to be a service grant.. This is what he

says:

I have not also been referred to any case in which such a private alienation of a private land by a private owner has been held to be a service grant.

Admittedly the village is a Dharmasanam village, that is to say, village granted to Brahmins; and Ex. I purports to have been executed by the

persons who have signed it on behalf of the entire Brahmin Mahajans (Asesha Vidwa Mahajanams). The learned Subordinate Judge concedes that

if a zamindar had granted such an inam, it would be a valid service inam given for service in the temple and might be inalienable. The mere fact that

in this case the grantor was the Mahajans instead of a zamindar will not make the grant any the less a service inam. A zamindar when he makes a

grant is a private person making a grant of his private property. So also with the Mahajans to whom the Dharmasanam village belonged. I find

there is nothing in the fact that the land was granted by the Mahajans of the village to persons who were rendering service in the temple as

emoluments for such service, which will make it invalid as a service inam disentitling the holder from alienating the property.

The Subordinate Judge also considers that the alienation will-be valid so long as the service is being performed; but this is a case of alienation by

a person who is dead and it is his successor that is questioning it. He is not bound to do service if he does not get the emoluments. He is entitled to

say that the alienation by his father is not binding on him. It has been held in a number of cases that alienation of land granted for service in temples

is invalid as opposed to public policy : Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), . In Sundara Raju Dikshatulu v. Seshadri Dikshatulu

(1927) 54 M.L.J. 76. it was pointed out that the test is whether the alienation in effect places the income from the lands beyond the disposal of the

holder of the office and prevents him from enjoying the emoluments which were intended to go to the holder of the office in order to enable him to

discharge his duties properly. In V.E. Ramanathan Chettiar Vs. Kalidasa Kavandan and Another, . , which was also a case of mortgage it was

contended that this objection to alienation applied only to sales and not mortgages and it was held that even a mortgage of temple service inam land

was invalid as opposed to public policy, at any rate, where the mortgage does not provide for payment to the institution or in support of. the

service a sum not less the net assessment of the land. There is no such provision here.

In these circumstances I find that the Subordinate Judge was wrong in holding that the mortgage was valid on the ground that it was not

opposed to public policy and I agree with the first Court that the mortgage was invalid being of an inam granted for doing service in a temple.

The appellant also raised an objection to the finding of the lower appellate Court on the question whether the mortgage was executed for debts

incurred for purposes binding on the mortgagor''s son. The lower appellate Court has found in favour of the plaintiff and, being a finding of fact, this

Court cannot interfere with it.

In the result this second appeal is allowed, the decree of the lower appellate Court is set aside and the decree of the first Court is upheld. The

respondent will pay the appellant''s costs in this and the lower appellate Court.