Dayalan and Another vs Sri Kadeswaraswami Temple of Kadaiyur and Others

Abdul Hadi, J.—The claimants for patta under the Tamil Nadu Minor Inams (Abolition and Conservation into Ryotwari) Act (XXX of

1963), (Herein after referred to as the Act), have filed this S.T.A.No. 4 of 1985 against the impugned order dated 22.3.1983 of the Minor Inams

Abolition Tribunal in CM. A No. 61 of 1981, which dismissed the appeal preferred by the same claimants against the order of the settlement

Tahsildar dated 28.8.1970, which granted the said patta in favour of the temple in question.

As per the extract taken from the Inam Fair Registrar, as found in the relevant file, the grant is a ''Devadayam'' grant for preparing the accounts

of the pagoda and for managing the affairs of the pagoda (Kadeswaraswami at Kadaiyur). Another passage therein also says that the grant is

permanent so long as it is continued. From yet another passage therein, it appears that it is granted to Kangayam Maniyam Kanakku Anandaram.

It appears that this is referred to in column 16 of the Fair Inam Register. Then, column 21 appears to run as follows:

To be confirmed to the party in Col. 16 so long as he continues the performance of the service.

From these passages, the contention of the appellants is that originally the grant was in favour of an individual, namely, the abovesaid Anandaram

for himself performing services to the temple, namely, for preparing the accounts of the temple and for managing the affairs of the above said

temple. The further plea of the appellants is that under Ex. A-1 dated 13.6.1876, the said Anandaram had perpetually leased out the land in

question to one Swamy Gounder who came to enjoy the said land from the said date. The further plea is that under the subsequent partition deed

dated 18.5.1920 under Ex. A-4, the said land was allotted to one Muthusamy Gounder, who is the maternal grand father of the appellants. The

further plea is that the said Muthusamy Gounder settled the said lease hold interest under Ex. A-5 elated 2.12.1959 to Visalatchi, the mother of the

appellants. The further plea is that on the death of the said Visalatchi on 10.7.1966, the appellants, as her children, came to be in possession of the

land in question and continued to have the said perpetual lease - hold interest.

In the above background learned Counsel for the appellants argues that the appellants alone should have been granted patta. Learned Counsel

for the appellants proceed on the footing that the original grant was an iruvaram minor inam grant and the grant was in favour of an individual,

namely, the above said Anandaram, though granted ""for managing the affairs"" of the abovesaid temple.

In other words, what we gather from the said argument is, even assuming that the grant was in favour of an individual, namely, the above said

Anandaram, it was ""iruvaram minor inam grant for the support or maintenance of a religious institution or or service connected therewith..."" spoken

to in Section 8(2) of the Act. So, it is clear that Section 8(2) of the Act is attracted in the present case. When Section 8(2) is attracted, patta can

be granted either under Clause (i) or Clause (ii) thereof, As per Clause (i) of Section 8(2).

Where the land has been transferred by way of sale and the transferee-or his heir, assignee, legal representative had been in exclusive possession

of such land.

(a) for a continuous period of sixty years immediately before the 1st day of April, 1960, such person shall with effect on and from the appointed

day, be entitled to a ryotwari patta....

(b) for a continuous period of twelve years immediately before the 1st day of April, 1960, such person shall... be entitled to a ryotwari patta if....

In other words, for Section 8(2)(i) to apply, the land must have been transferred by way of sale but in the present case, the land has not been

transferred by way of sale but has been transferred only by way of perpetual lease as mentioned above under Ex. A-1 dated 13.6.1876. Even

though it may be a perpetual lease, it cannot be equated with sale. Therefore, the transferee or other persons spoken to in Section 8(2)(i) of the

Act will not be entitled to ryotwari patta.

In view of this position, learned Counsel for the appellants sought to argue alternatively, that in any case, patta should have been granted to the

appellants u/s 8(1) since according to him, the appellants would be persons who are ""Lawfully entitled to the Kudivaram in an inam land

immediately before the appointed day"" whether such persons are inamdars or not. No doubt, Section 8(1) of the Act runs as follows:

Grant of ryotwari pattas - (1) Subject to the provisions of sub-Section (2), every person who is lawfully entitled to the kudivaram in an inam land

immediately before the appointed day whether such person is an inamdar or not shall, with effect on and from the appointed day, be entitled to

ryotwari patta in respect of that land.

So, it is clear that Section 8(1) is subject to 8(2) of the Act. In this connection, it is pertinent to refer to a decision of the Division Bench of this

Court in Arivaradaraja Perumal Temple Pollachi v. K.S.J. Raju Chettiar 91 L.W. 142. No doubt, in that case, the temple in question was the

grantee and not any individual for the support of the temple for rendering any service in the temple. In that case, the claim was made for patta u/s

8(1) before the Tribunal, though not before the Settlement Tahsildar, on the ground that Section 8(2) did not apply to the case because according

to the claimant, the grant in favour of the temple was of the melvaram alone. In that connection, after concluding that the grant was of both the

warrens 16 the temple therein, particularly because Section 44 of the Act also, the Division Bench, observed as follows:

This at once renders Section 8(2) applicable. By the same token, Section 8(1) is ruled out from consideration. That is because, Section 8(1), in

terms would have operation only ""Subject to the provisions of Sub-8(2).

In the light of the abovesaid observation, it is clear to us that the appellants herein cannot claim patta u/s 8(1) at all. Intact, they did not make such

a claim even before the Tribunal. We asked the learned Counsel for the appellants to verify whether any such ground had been taken in the first

appeal before the Tribunal but learned Counsel after going through the above grounds, could not point out any such ground taken in the first

appeal.

We must also point out that Section 44 of the Act, runs as follows:

Presumption in the case of service inam - In proceedings under this Act relating to any inam granted for the benefit of any religious, educational or

charitable institution or granted to any individual for rendering service to a religious, educational or charitable institution or for the purpose of

rendering any other service it shall be presumed unless the contrary is proved that the inam consists not merely of a grant of the melvaram in the

land but also the Kudivaram therein.

In other words, Section 44 also applies even in the case of a grant to any individual for rendering service to a religious institution and the

presumption under the said Act even in such a case is that the inam consists not merely of a grant of the melvaram but also of the kudivaram.

No doubt, learned Counsel for the appellants also argued that the appellants had no notice for the proceedings which took place in about 1970

before the Settlement Tahsildar. It appears that notice had gone only to the abovesaid Muthusamy Gounder after he had transferred his lease -

hold interest in 1959 under Ex. A-5. It also appears that he has not represented before the Settlement Tahsildar about the abovesaid settlement

made by him. Any way, despite the above referred to argument, we must state that the claimants/appellants had full opportunity before the Tribunal

to establish their case and secondly, in view of what we have held above we do not see any justification for the appellants making a claim for patta.

Accordingly, we dismiss the appeal. No costs. Consequently, S.T.P. 5 of 198S is also dismissed.