Davuluri Venkata Hanumantha Rao and Another vs Kasinadhuni Chengalvarayudu and Another

Subba Rao, C.J.—This is a Defendants'' appeal against the decree and judgment in Original Suit No. 82 of 1948, a suit filed by the respondents for recovery of two items of land in the village of Pedapulivarru and for recovery of profits.

The undisputed facts may be briefly narrated. The plaint schedule property was originally granted to an ancestor of the Plaintiffs belonging to Kasinadhuni family for rendering Stanachari service in the temple of Sri Narendraswami Varu in the village of Peddapulivarru. In a partition effected by the Plaintiffs, their brother Sadasivalingamurthi and their father, the suit lands fell to the share of Sadasivalingamurthi. Sadasivalingamurthi died on 4-9-1947. During his lifetime he leased out the property to Defendants 1 and 2. Subsequently on 16-7-1946 Sadasivalingamurthi sold 1 acre 90 cents of item 1 and item 2 to the 1st Defendant. Likewise he sold 1 acre 75 cents of item 1 to the 2nd Defendant on 21-2-1946.

After the death of Sadasivalingamurthi, his widow Purnasundaramma surrendered her estate in favour of the Plaintiffs by a deed dated 5-9-1948 on the ground that the leases and sales were not supported by consideration and they were also void as opposed to public policy. The Plaintiffs filed the above suit for recovery of possession and profits.

The Defendants denied that the suit properties are service inam lands. They claimed that what was granted was only the melwaram in the suit lands. They averred that the leases and sales are valid and are fully supported by consideration. They finally pleaded that Section 44-B, Madras Hindu Religious Endowments Act, was a bar to the maintainability of the suit.

The learned Subordinate Judge held on the evidence that the suit lands were service inam lands and that the leases and sales were void. He ruled that Section 44-B, Madras Hindu Religious Endowments Act, was not a bar to the maintainability of the suit.

When a new point was sought to be raised for the first time, namely, that the mode of devolution of the property in regard to unenfranchised service inam lands was different from ordinary property and that according to the said devolution, the Plaintiffs who were neither members of a joint Hindu family, nor the lineal descendants of Sadasivalingamurthi, were not entitled to inherit his property, the learned Judge refused to allow the appellants to raise that plea. In the result, he gave a decree to the Plaintiffs. Hence this appeal.

The first question raised is that the surrender of the suit lands by Purnachandramma, the widow of Sadasivalingamurthi, was invalid as the Plaintiffs were not the next reversioners to the estate of her husband. This argument is based upon the contention, that in regard to unenfranchised inams, the rule of succession is different from that which obtains in the case of other property and that in regard to the said property, neither the widow nor the divided brothers of Sadasivalingamurthi were heirs to his estate. The learned Judge rightly pointed out that this case was not set up in the pleadings, and on that ground rejected the contention.

In our view, the learned Judge was right in not allowing the Defendants to raise a plea at the time of arguments, which was not specifically raised in the pleadings.

Further we are also of the opinion that there are no merits in this contention. Exhibit A-1 is the title deed in respect of the suit properties. It reads:

Title deeds granted to (1) Kasinadhuni Subramaniam and (2) Kasinadhuni Nagappa Ayyavarru.

(1) On behalf of the Governor in Council of Madras, I acknowledge your title to a Devadayam of Pagoda endowed inam situated in the village of Peddapulivarru in the Taluk of Repalle in the District of Guntur claimed title to be of 7 acres 70 cents of dry lands held for service of Stana-charis in the pagoda in the village.

(2) This item is confirmed to you and your successors tax free to be held without interference so long as the conditions of the grant are duly fulfilled.

It will be seen from the aforesaid title deed that the title of the named individuals was acknowledged and the inam was confirmed to them and to their successors. This title deed does not prescribe any new mode of devolution or a devolution that is different from that prescribed under the Hindu law. In the absence of specific directions or imposition of conditions contrary to the ordinary devolution of property under Hindu law, we must hold that Government confirmed the grant to the named individuals and the successors-in-interest. If so, after the death of Sadasivalingamurthi, his widow Purnachandramma acquired a widow''s estate land she was entitled in law to surrender her estate to the next heir, the divided brothers of her husband.

Reliance is placed on Board''s Standing Order No. 57 which reads:

In the case of unenfranchised inam held for subsistence or personal inams as they are generally called, the Collector should be guided by the terms of the title deed granted by the Inam Commissioner ... where inams have been confirmed on hereditary tenure, it must be remembered that they are not transferable by alienation and. that succession in cases is limited to the undivided brothers and to the direct lineal heirs of the-last incumbent, and failing them to the direct lineal heirs of the original grantee.

Order 52 says:

The rules under which inams have been settled by the Inam'' Commissioner are given in Appendix I, and Collectors should be guided by them in the disposal of any cases still remaining to be settled.

Rule III of Appendix I which deals with service Inams says that they will be continued to the present holders and their successors and will not be subject to further interference, so long as the services continued to be performed according to the conditions of the grant. There is no rule or direction prescribing a new line of succession in the case of service inams.

But Rule V which deals with personal grants, says that succession is limited to direct lineal heirs and undivided brothers. In the note annexed to that clause, it is stated that succession, under this clause, is limited to direct lineal heirs and undivided brothers of the last incumbent, or failing them, to direct lineal heirs of the original grantee. Assuming that Board''s Standing Order 57 and Rule V of Appendix I were intended to govern succession even in the case of grants burdened with service, that rule cannot obviously change the mode of devolution under Hindu law.

It may be that the grantor, i.e., the State, in issuing the title deed could have made the grant subject to specific conditions, but in this case, the Government, in issuing the title deed Ex. A-1, did not prescribe any such conditions. In the absence of any such condition, the general law of succession must apply.

Further, even if the title deed must be read subject to Board''s Standing Order 57, under that Order, in the absence of direct lineal heirs of the lost incumbent, the property would devolve in the direct lineal heirs of the grantee. It is not suggested, nor is it in evidence, that Sadasivalingamurthy left behind him any lineal heirs such as sons, daughters'' sons, etc. In the absence of such, any lineal heirs, his divided brothers would be the lineal heirs of the original grantee. Anyhow, if this plea was taken in the pleadings, the Plaintiff could have established that fact. For all the aforesaid reasons, we hold that the Plaintiffs are the next reversioners of Sadasivalingamurthi and the surrender in their favour is valid.

It is then contended that the original grant in favour of the Plaintiff''s ancestors was only the melwaram interest in the plaint schedule property.

There is no presumption that either the grant is of both the warams or of a single waram. Whenever such a question is raised, it falls to be decided on the evidence adduced in the case. The original grant is not produced. In the absence of the original grant, the inam proceedings and the title issued by the Inam Commissioner, are of high evidentiary value.

Exhibit A-1 is the Inam title deed. Under that title deed, the Inam Commissioner acknowledged the title of the grantees to 7 acres 70 cents of dry land. The document does not say that the melwaram interest of the grantees only was confirmed. The Inam Register in Col. 5 gives the extent of the inams as 7 acres 70 cents and in Col. 9 under the heading "Whether free of tax i.e., Sarvadumbala, etc., or liable to quit rent, i.e., jodi, kattubadi, badiga etc." it is described as "free." The said extent is confirmed in Col. 22. There is absolutely no mention in any of the columns of the grant being of the melwaram alone in the said extent. Exhibit B-1 is the Inam statement filed by the predecessor-in-interest of the Plaintiffs. In Col. 6 "Particulars as to how the inam was acquired and the conditions", the following entry is found:

In fasli 1196, Rajah Manikya Rao Tirupathi Rayanim Guru, the then Zamindar of Rachuru Taluk granted Arakutchalapolam manyam to Kasinadhuni Veeranna Ayyavarlu in the aforesaid Vantu. Therefore, Voleti Rayanna issued a San-nad known as Takid to the Karnams of Pallivarru Vantu on the 10th day of Bhadrapada Sudda of the year Plava directing that measurements should be taken and boundaries settled.

If, as it is contended, the original grantee was in possession of the suit lands, and the Rajah only remitted the tax payable in regard to that extent, there was no necessity for issuing a takid for taking measurements and fixing boundaries. This recital clearly implies that what was granted was land not in the possession of the grantee and therefore it became necessary for the issue of a takid to measure and fix the boundaries to enable the grantee to take possession.

In Col. 11, under the heading "Particulars of the present enjoyment", the following recital is found:

The income is being enjoyed equally by these two individuals as per shares. The field is joint and we are doing Stanacharyatvam service in the temple of Sri Narendraswami Vara mentioned in the register of 1255.

This column clearly implies that the field, not the melwaram interest, was kept joint by the grantees and that they were enjoying the income from the field equally. This recital dispels any ambiguity that may be found in the other recitals in the document.

But strong reliance is placed upon the recital in Col. 12 under the heading "Profits realised on the inam, if Sarvudumbala or jodi, and if jodi how much?" The recital reads:

Sarvadumbala Rs. 13-14-4 being the seri rate of cist per one K equivalent to 7 acres 28 cents.

This alone is the profit that is being realised by the Inamdars.

Relying upon this recital it is contended that what was granted was only the melwaram interest in the suit lands. To put it differently, it is said that Rs. 13-14-4, the assessment payable to the Government, was remitted to the grantees who were in actual possession at the time of grant. In our view, the recital does not support that contention. The lands were dry lands and in those days, the income must have been very insignificant. It may be that the amount they were getting from the Inamdars was only Rs. 13-14-4 per katti. The recital that that alone is the profit that is being realised by the Inamdars indicates that that was the income they were deriving from it.

Reliance is placed on the unreported judgment of Wadsworth J. and Patanjali Sastri J. in -''Appeal No. 213 of 1942 (Mad) (A)''. There, unlike in this case, the entire question fell to be decided on a recital in Col. 12. Under the column "Income realised from the Inam", the entry was Rs. 14/- Sarvadumbala; in the inam register the assessment of the inam was shown as Rs. 14/-. From a comparison of these two entries, the learned Judges held that the extent of the Inam was the amount of assessment. This view did not find favour with another Division Bench of the Madras High Court in - ''Bhagavathi Amman Temple v. Krishna Goundar 1949 2 Mad LJ 609 (B), where it was held that such recitals did not warrant the inference that the grant was in the nature of a mere remittance of the rent payable to the Government.

The view expressed by the latter Bench was followed by another Division Bench of the same Court. In this case, the amount of assessment given in Ex. A-2, the inam register and the profits shown in Ex. B-1, the Inam Statement also do not tally, and therefore the basis for the said argument disappears. Apart from that, we hold from the other recitals in the inam statement, the Inam register and the title deed that the grant in the present case was of both the warams.

Now we come to the last point advanced by the learned Counsel.

It is stated that Section 44-B, Madras Hindu Religious Endowments Act, is a bar to the maintainability of the suit. The relevant portion of Section 44-B reads:

(1) Any exchange, gift, sale or mortgage and any lease for a term exceeding five years of the whole or any portion of any inam granted for the support or maintenance of a math or temple or for the performance of a charity or service connected therewith, and made, confirmed or recognised by the British Government shall be null and void

(2) (a) The Collector may on his own motion, or on the application of the trustees of the math or temple or of the Assistant Commissioner or of the Board, or any person having interest in the math or temple, who has obtained the consent of such trustee, Assistant Commissioner or Board, by order resume the whole or any part of any such Inam, on one or more of the following grounds, namely;

X X X X When passing an order under this clause, the Collector shall determine whether such inam, or the inam comprising such part as the case may be, is a grant of both the melwaram and the kudiwaram or only of the melwaram.

X X X X (d) (i) any person aggrieved by the order of the Collector under Clause (a) may appeal to the District Collector within such time as may be prescribed and on such appeal, the District Collector, after giving notice to the Board and such of the persons mentioned in Clause (b) and after holding such an inquiry as may be prescribed, pass an order confirming, modifying or cancelling the order of the Collector.

(ii) The order of the District Collector on such appeal or the order of the Collector under Clause (a) where no appeal is preferred under Sub-clause (i) to the District Collector within the prescribed period, shall be final.

Provided that where there has been an appeal under Sub-clause (1) and it has been decided by the District Collector or where there has been no appeal to the District Collector and tire time for preferring an appeal has expired, any party aggrieved by the final order of the District Collector or the Collector as the case may be, may file a suit in a Civil Court for determining whether the Inam comprises both the melwaram and the kudiwaram or only the melwaram. Such a suit shall be instituted within six months, from the date of the order of the District Collector, on appeal, where there has been an appeal, under sub-clause (i) or from the date of the expiry of the period prescribed under Sub-clause (i) for an appeal to the District Collector in a case where there has been no appeal.

(e) except as otherwise provided in Clause (d) an order of resumption passed under this section shall not be liable to be questioned in any Court by suit or otherwise.

This section empowers the Collector to pass an order of resumption if an Inam described therein was alienated. Incidentally, he has to decide the extent of the inam, viz., whether it is of both the warams or of only the melwaram. The question whether the inam comprised both the melwaram and kudiwaram can be agitated by an aggrieved party by filing a suit in a Civil Court, but in other respects the order of resumption passed under this section shall not be questioned in any Court by suit or otherwise.

The scheme of the section, therefore, is that the Collector is empowered to resume an alienated inam and the order of the District Collector on the question of resumption has been made final. This section does not either expressly or by necessary implication bar a suit by a service holder claiming to recover properties illegally alienated by his predecessors. Such a suit does not involve any question of resumption. It is a suit by a service holder to recover property based on his title from a person in possession under an illegal alienation.

13.Section 44-B provides a machinery for resumption of service inam lands on behalf of the Government on the ground that the purpose failed.

The suit with which we are now concerned, is one by a service holder to recover a service inam, so that the service may be carried on. We cannot, therefore, hold that Section 44-B is a bar to the maintainability of the suit.

Even otherwise, we hold that Section 44-B does not apply to a case of a grant of land to a person burdened with service. Section 44-B applies only to a religious endowment. It cannot apply to grants made to individuals burdened with service. It was so held by a Division Bench of the Madras High Court consisting of Rajamannar, Chief Justice, and Rajagopala Iyengar J., in - P.V. Bheemasena Rao and Another Vs. Sirgiri Peda Yella Reddi and Others, * (C).

But it is contended that by reason of the explanation added to the definition of "Religious endowments" in Section 9(11) of the Act, such a grant burdened with service would also come within the scope of Section 44-B. As the learned Judges pointed out, the definition of religious endowment is not relevant to the consideration of the scope of Section 44-B. Further the explanation to the definition of "Religious Endowments" does not in any way enlarge the scope of the words for the performance of any service or charity, in the main part of that section. "Religious endowment" is defined in Section 9(11) as follows:

Religious endowment or endowment means all property belonging to or given or endowed for the support of maths or temples or for the performance of any service or charity connected therewith and includes the premises of the maths or temples, but does not exclude gifts of property made as personal gifts or offerings to the heads of math or to the Archaka or other employee of a temple.

Explanation: All property which belonged to or which was given or endowed for the support of a temple or math or for the performance of any service or charity connected therewith, shall, for the purpose of this definition, be deemed to be a religious endowment or endowment notwithstanding that the temple or math has ceased to exist to be used as a place of religious worship, whether before or after the commencement of this Act.

Somayya J. in - ''Venkata Narayana v. Hindu Religious Endowment Board, Madras AIR 1946 Mad 81 (D) held that grants of land to persons burdened with service are not covered by the definition. We agree. The property endowed for the performance of any service connected with a temple in that section must be property given to the temple for the performance of service, or given as remuneration for performing service in a temple.

The words cannot conceivably take in grants made to individuals subject to the performance of service, for the Act is neither intended nor purports to confiscate private properties. The explanation is only intended to enlarge the scope of the definition to take in properties described in the main section, even though the math or temple ceased to exist or ceased to be used as a place of religious worship. It is not intended to enlarge the scope of the definition so as to take in properties given to the individuals burdened with service. We, therefore, respectfully follow the aforesaid decision and hold that Section 44-B does not apply to grants burdened with service.

In the result the appeal fails and is dismissed but as the learned Counsel for the respondents reported no instructions, without costs.