Nallaswami Gurukkal and Others vs Sadasiva Gurukkal

Venkatasubba Rao, J.—Mr. Varadachanar in his interesting argument has contended that Article 148, Lim. Act, does not apply, as the

hereditary right of an archaka, to offer worship in a temple, is not in the nature of immovable property as the lower appellate Court has held; but it

is unnecessary to deal with this argument, as, in my view, the plaintiff (the respondent) is bound to fail on another ground, with which I shall

presently deal. On the death of Kalyanasundaram Ayyar, his widow Minakshi, who succeeded to her husband''s turn of worship. in certain

temples, granted a mortgage over that right in 1884 (i.e., about 45 years previous to the suit) in favour of defendant 1''s father, the maternal uncle

of Kalyanasundaram. The plaintiff, on the strength of the deed obtained by him from Meenakshi in 1927, seeks to redeem the right of worship that

had boon mortgaged. The trial Court has hold, negativing the plaintiff''s contention that he has failed to prove that he is the reversioner and that the

deed in his favour does not operate as a surrender. As the lower appellate Court has given no finding on the reversionary right put forward by the

plaintiff, I have myself gone through the evidence and have come to the conclusion that the trial Court''s view, is correct; the plaintiff''s oral

evidence coupled with the mutilated pedigree filed by him is insufficient to show that he is the nearest reversioner.

Then the question arises, is the alienation by Meenakshi in favour of the plaintiff valid and enforceable? In Kuppa v. Doraiswami (1883) 6 Mad.

76 the learned Judges observe, and in my opinion rightly, that the effect of the Privy Council ruling in Vurmah Valia v. Vurmah Kunhi Kutty (1876)

1 Mad. 235 is to hold that the general rule is, that hereditary religious offices are inalienable and that no custom qualifying this principle can be

upheld, if the alienation amounts to a sale for the pecuniary advantage of the holder of the office. In S.A. No. 484 of 1929 (unreported) the view

has been followed and the point fully discussed by Sundaram Chetty, J. In the present case, there can be no doubt on the terms of the deed that

the transaction evidenced by it is a sale for consideration, effected for the personal benefit of the widow. I am therefore of the opinion that the

transaction is invalid and cannot be given effect to.

Mr. S.S. Ramachandra Iyer for the respondent contends that there is a rule of estoppel, which would prevent defendant 1 from contending that

the office is inalienable. I cannot agree. A mortgagee is no doubt estopped from denying his mortgagor''s title, but defendant 1 does not in the least

profess to question the title of Meenakshi. Whether or not the mortgage in favour of defendant 1''s father conferred on him any title, is not a

question with which I am now concerned; but I fail to see how it is not open to defendant 1 to contend that the sale, in favour of the plaintiff is

invalid and of no effect, being opposed to public policy. I must, therefore, holding that the alienation, in favour of the plaintiff is invalid, dismiss his

suit.

In the result, the second appeal is allowed, but I must deprive the successful defendants of their costs throughout. A most untenable and unjust

defence was put forward, that Meenakshi had forfeited her right to her husband''s property by reason of her unchastity. For that reason, I direct

that in all the three Courts each party shall bear his costs.