Periya Muthu Naicker and another vs Arulmighu Sevantheeswarar koil and The Assistant Settlement Officer, Thanjavur

Raju, J.—The above appeal has been filed under S. 30 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act,

1963 (Tamil Nadu Act 30 of 1963) hereinafter referred to as the Act. The lands in question measuring about 17.79 acres are situated in S. No.

218/2 of Manju Veli village, Karur Taluk, erstwhile Trichy District the said land was the subject matter of a memoriam the grant of which was

confirmed in T.D. No. 1649. The Fair Inam Register Extract disclosed that it was a Devadayam inam granted permanently for the support of

Sevantheeswarar Swam in Pagoda at Periya Manju Veli. The original grant itself was Said to have been in favour of the temple and the inam was

confirmed so long as the Pagoda exists. The name of one Chinna Veerayyan was shown as the worshipper of the temple, apparently meaning

thereby, that he was the person conducting poojas and therefore, he should have been the Poojari. The inam came to be notified under the Act,

and consequently, proceedings were initiated and the Settlement Tahsildar No. 1, Tiruchirapalli, by his proceedings dated 14.6.1966, directed the

grant of patta in favour of the appellants under S. 8(2)(i)(b) of the Act subject to the conditions imposed therein. Aggrieved, the first respondent -

temple filed Inam C.M.A. 16/83 before the Minor Inams Abolition Tribunal, V Additional Subordinate Judge, Tiruchirapalli. The Tribunal, after

considering the submissions of both the parties and after adverting to the various recitals in the Inam Fair Register Extract and the documents relied

upon by the appellants as the sources of their rights held that the documents as also the Fair Inam Register Extract have to be considered in greater

detail to ascertain whether the lands have been conveyed by anyone connected with or as representing the temple and that to enable such

consideration to be made, it would be appropriate to remit the matter for a fresh consideration by the original authority. Consequently, while setting

aside the proceedings dated 14.6.1996, the matter has been remitted for consideration fresh. On such remand by an order dated 29-2-1984, the

Assistant Settlement Officer, Thanjavur, who became the competent authority, took up the matter for consideration and after considering the

materials on record in the light of some of the earlier judicial decisions on the point, directed once again the grant of patta in favour of the appellants

under S. 8(2)(i)(b) read with S. 11(2) of the Act on the ground that the alienation by the poojari was valid one, particularly in view of the fact that

there was no information about any independent trustee having been in charge of the administration of the temple. Aggrieved, the temple once again

pursued the matter on appeal in Inam C.M. No. 2 of 1986 before the Minor Inam Abolition Tribunal/V Additional Subordinate Judge,

Tiruchirapalli. The learned Tribunal below adverted to some of the earlier judicial pronouncements and in the light of the facts disclosed, held that

the appellants appear to have purchased the lands from a person, who had no rights to alienate and who did not represent the temple and

consequently, the appellants could not be held to have derived valid rights or said to have legally acquired any interest in the property, warranting

the grant of patta in their favour. Hence, the Tribunal below set aside the grant of patta in favour of the appellants and directed the grant of patta in

favour of the temple under S. 8(2)(ii) of the Act by its order dated 11.1.1988. Hence, the above appeal.

Mr. T.R. Mani, learned Senior counsel appearing for the appellants strenuously contended that the reference to Chinna Veerayyan as worshiper

in an indication that he was Poojari-cum-trustee of the temple and that having regard to the alienation effected by their successor-in-interest, the

grant of patta in favour of the appellants under S. 8(2)(i)(b) of the Act was on the basis of the mortgage of the year 1883 and the sale in 1919 and

the Tribunal below committed a grave error in interfering with the patta granted in favour of the appellants, the learned counsel for the first

respondent-temple vehemently contended that the findings recorded by the Tribunal below that the appellants have not lawfully acquired the title or

interest in the lands from the competent person or the inamdar was well merited on the facts and circumstances of the case and the ratio laid down

in the decided cases adverted to by the Tribunal below and consequently, no interference is called for in this appeal. The learned senior counsel for

the appellants also contended that in respect of small temples in this part of the State, it was a well settled position that the poojari happened to be

the Poojari-cum-trustee and therefore, it matters very little as to whether the sale deed refers to the name of temple as such or the documents have

been described to have been executed by the said poojari-cum-trustee in his own/name.

We have carefully considered the submission of the learned counsel appearing on either side. In our view, there are no merits whatsoever in the

appeal. We have adverted to the | contents of the relevant entries in the Fair Inam Register Extract. The learned Tribunal below has also adverted

to such details to the grant being a Devadayam one and granted permanently in favour of the temple and having been also confirmed in favour of

the temple as long as the temple exists and the grant had to be considered as of both warams, both by virtue of the nature of the grant and also on

account of the presumption engrafted in S. 44 of the Act.

A Division Bench of this Court has held in the decision reported in 1983 T.L. N.J., 126 (Vellaisamy vs. Sri Chinnaseltandiamman Temple by its

Trustee Govindaswamy Gounder and another"") that in cases where the grant is in favour of the temple and permanently made of both warams and

confirmed as long as the temple exists, mere long possession by any one other than the temple or as representing the temple will not by itself

militate against the nature of the grant being of both warams in favour of the institution. As a matter of fact, ""there was no serious contest or dispute

over this settled position and before us it was proceeded on the basis, by the counsel appearing on either side, that the grant was of both warams

in favour of the temple.

In the above circumstances, the next issue that arises for consideration is as to whether the appellants could claim to be entitled to patta under S.

8(2)(i)(b) of the Act by virtue of the sale said to have been effected in their favour or their predecessors in interest. To bring a case under S. 8(2)(i)

(b) of the Act, it has to be proved that the Land, which was the subject matter of the inam granted for the support or maintenance of the religious

institution has been transferred by way of sale and the transferee or his heir assignee or legal representative or person deriving rights through him

had been in exclusive possession of such land for a continuous period of 12 years immediately before 1.4.1960 subject to his payment of the

consideration as stipulated therein. The Division Bench, which has decided 1983 T.L.N.J, page 126 (supra) also held that the person, who claims

patta under S. 8 of the Act must be shown to be lawfully entitled to the Kudiwaram interest and more long possession by itself would not confer

any title to kudiwaram as against the grantee-inamdar. In coming to such a conclusion, the Division Bench also relied upon an earlier Division

Bench judgment reported in 91 L.W. 142 (Karivaradaraja Perumal Temple, Pollachi-vs-K.S.J. Raju Chettiar), wherein it was held that though the

possession of lands may not be with the temple for over 12 years or even 60 years, the persons in possession unless make out that their possession

and those of their predecessors-in-interest are derived from a legally valid transfer of title by the temple by way of sale, S. 8(2)(1) of the Act

would not apply and in such cases it is only the residuary provision in S. 8(2)(ii) of the Act, that would apply and consequently the temple alone

would be exclusively entitled to patta. In yet another decision of a Division Bench reported in 1978 T.L.N.J. page 408 (Arumugha Ammal and

another - vs-Visha Kattalai) it was held that to attract the provisions of S. 8(2)(i)(a) or(b) of the Act, the condition precedent is that the land

should have been transferred by the Inamdar himself and not by a person, who has nothing whatever to do either with the institution or with the

land itself.

To appreciate the said principles with reference to the claim projected now by the appellants, it becomes necessary to advert to the basis of

their claim. The appellants have made available four documents of the years 1883, 1900,1910 and 1919. The document No. 203 of 1883 is an

usufructuary mortgage executed by one Chinna Veerayyan, son of Sivanayyan said to be doing temple pooja and agriculture. The further recitals in

the document would go to show that though the lands have been referred to as forming the subject matter of an inam grant made for conducting

poojas in the temple, he seems to assert possession and enjoyment in himself on account of patta said to be standing in his name. The document

does not contain any recitals as though it was executed by the temple or by the said Chinna Veerayyan as rep-resenting the temple and the

mortgage was necessitated for purposes connected with or the necessities of the temple. The document of the year 1900 (document No. 720 of

1900) is also another usufructuary mortgage by Veerayyan for himself and his two minor sons and the nature of the recitals would go to show that

it was not as representing the temple or for purposes or the benefit or the necessities of the temple. On the other hand, there are recitals in this

document also disclosing their assertion of title in themselves, and as though the property was their own. The document of the year 1910 is once

again another usufructuary mortgage executed by all the three persons, who executed the document of the year 1910. This also is on similar lines

as the other two documents and does not connect or even refer as having been executed for and on behalf of the temple or for purposes

connected with the necessities of the temple. The document of the year 1919 (document No. 525 of 1919) is the sale deed executed by the three

persons, who have executed the earlier two documents. The recitals in the sale deed categorically assert that the property belongs to the three

executants and the sale was for discharging the earlier mortgages and for the additional consideration received for their family expenses. This sale

deed makes it beyond doubt or controversy the position that the property was being claimed and asserted by the vendors to be their own and they

have dealt with it and sold the same for their family purposes and not for any purposes connected with or for the necessities of the temple. In the

light of the above factual position, it requires consideration as to whether the appellants could claim to have lawfully derived any right or interest in

the lands by virtue of the documents including the sale deed of the year 1919 produced by them and whether the appellants could be held to have

satisfied the requirements of S. 8(2)(i)(a) or (b) of the Act.

In AIR 1963 Madras 213 (Rajaram -vs- Ramanujam) a Division Bench of this Court had an occasion to review the case law on the subject

pertaining to the legality and validity of an alienation of property belonging to a trust by the manager or trustee professing to act without disclosing

that he was acting in that capacity, but claiming such properties as his own personal properties. After an elaborate consideration of the legal

position, it was held that such an alienation will be ab-initio void, since the very alienation was in derogation of the trust as such.

Even in the decision reported in 1967 I A.W. R., page 141 (Srinivasa Reddiar vs. Ramasamy Reddiar) the Apex Court impliedly in our view,

approved the said principle though in respect of application of the relevant article in the Schedule to the Limitation Act, 1908 (Article 134-B). It

was considered that the possession of the transferee cannot be considered to be adverse to the religious endowment from the very beginning and

the succeeding manager''s right to challenge the said transfer could not be held to have been lost. Apparently, the provisions contained in Article

134-B having been specially devised to protect the interests of the religious institutions and trusts, their Lordships of the Supreme Court have

chosen to view the position that the first column of Article 134-B do not permit the making of any difference whether the property was sold as

belonging to the temple or trust concerned or as belonging to the trustee or the manager for the time being himself and once it is proved that the

property really belonged to the religious institution, Article 134-B applied to all such cases in respect of suits filed by the succeeding trustee or

manager. Consequently, the claim on behalf of the appellants that they have lawfully acquired or succeeded to the rights and interest of the

inamdar, which happens to be in the present case the temple itself cannot merit our acceptance and their possession under such void and illegal

documents has equally to be only unlawful possession. Both on the said ground and also for the reason that in the absence of a valid sale. The

appellants could not claim to have satisfied the requirements of S.8(2)(i) of the Act, their claim in our view was rightly rejected by the Tribunal

below and the original authority has committed a grave error in taking a contra view, which has been rightly interfered with by the Minor Inams

Abolition Tribunal in this case. The decision of the Tribunal therefore, suffers no error of law of facts, warranting our interference in this appeal.

The appeal, therefore, fails and shall stand dismissed. No costs.