Tadanki Brahmayya (died) and Others vs Puvvula Madhuram and Another

Ramesam, J.—The facts out of which this second appeal arises may be stated as follows:

In the Zemindari of Telaprolu there is a village called Pamulapadu. In the village there is a temple dedicated to Sri Chidanandeswara Swami and

it is said that the suit inam was granted to certain dancing girls long before the permanent settlement for the purpose of rendering service in the

temple. In the year 1904 the Tahsildar of Nuzwid started an enquiry on the question whether the services were being properly performed by the

dancing girls in the temple and whether therefore the Government ought not to resume the inam. The correspondence dealing with this matter

consists of Exs. C to G during the years 1904 and 1905. Finally the Government placed the inam under attachment and began to collect assess

ment on the inam. Ex. G is the final order of the Collector.

It appears from it that at that time, the services were not being rendered for the preceding 15 years. The manager of the Telaprolu estate says in

Ex. F ""there is little or no probability of the Kalyanothsavam in the Pamulapadu temple being performed in the near future."" Ex. G shows that the

service was not rendered by the dancing girls for some time because the Utsavam at which such services had to be rendered was not performed.

They were willing to render service if the Utsavam is resumed. In 1911 the Zemindar of Telaprolu executed a deed of gift (Ex. Q) giving the suit

village of Pamulapadu in favour of his brother-in-law Gangadara Ram Rao and his sons. The gift was followed by a sub-division and now the

donee is regarded as the proprietor of the village paying a separate Peishkush. He then began to take steps to get the services in the temple

properly rendered and to revive the Kalyanotsavam. He issued two notices on 23rd August, 1912 and 21st October, 1912 to the representatives

of the service holders, namely, the present defendants 2 and 3. To these they replied by Exs. H and J denying that the land was a service inam and

that they were liable to render service in Kalyanotsavam, etc., festivals. After this denial the proprietor appointed the plaintiff for the purpose of

rendering service in the temple. This was in June, 1913, Meanwhile in 1913 by Ex. K. the Government released the inam from attachment and

informed the trustee that he could take such action as he thought fit to secure the revival of the services. In 1915 by Ex. P the proprietor called

upon the defendants 2 and 3 to render services in the temple. In this notice he says that as he entertained some doubt as to the legality of the prior

notices, a fresh notice was issued. He also calls upon them to appear before the Tanadar of Pamulapadu on 8th May, 1915 to show cause why

they should not be dismissed from service. He entertained doubts as to the legality of the earlier notices apparently because they were issued at a

time when the inam was under the attachment of Government and when the Government was collecting assessment on the inam. Soon after the

notice, Ex. P, the proprietor seems to have filed a suit to recover possession of the suit inam. That suit was dismissed on the ground that the right of

resumption was not in the Zemindar but in the Government and that the proper person to recover the inam from the defendants would be the new

appointee to the office. Thereupon the present plaintiff who was appointed in June, 1913 filed this suit inb August, 1919. Both the Lower Courts

decreed the suit and the defendants have filed this second appeal.

Mr. Varadachari who appears for the appellants raises four points:

Whether the inam was a service inam held on condition of rendering service in the temple?

Whether the donee under Ex.Q was the lawful Dharmakartha of the temple and was entitled to call upon the defendants to perform service and

dismiss them on disobedience and appoint the plaintiff or other person to the office?

Whether the plaintiff is entitled to mesne profits? and

Whether the inam consisted of melvaram only or both melvaram and kudivaram?

On the 1st question as to the nature of the inam I will refer to the documents not with a view to give my finding but merely to show that probably

there was a genuine doubt in the minds of the defendants as to the nature of the inam. The earliest document Ex. XIV which is an extract from

Oake''s Register of Inams for Fasli 1797 shows that the suit inam was described as Mokhasa. It was granted to one Balaguruvi in Fasli 1172 by

Narasimha Appa Rao, the Zemindar of Nuz-wid. The other documents, Ex. XIV series, also extracts from Oake''s Register of Inams, show that in

the case of other service inamthey were not shown as Mokhasa but as Inam expressly describing the service.For instance in ExsXIV,XIV(b), XIV

(e) and XIV (h) the inam is described as inam to carpenters and blacksmiths for repairing the vahanams of Swami. varu. In Exs. XIV (c), XIV (d)

and XIV (/) the services are described as Bajanthri, etc., for the performance of Utsa-vams in Ayilur Swami Temple. Then another set of

documents Exhibits II, III and IV were also relied on. In Ex. II the suit inam appears under the head ""Sarva Dambala Inams"" so also in Exs. III and

IV. The phrase ""Sarva Dambala Inam"" was also relied on in the Lower Courts and before me to show that it was an absolute Inam and not subject

to any service. I am merely expressing an opinion and not giving a finding on the issue. I rather think that the phrase ""Sarva Dambala Inam"" was

only meant to show that no money payment was insisted on the holding of the inam and it does not necessarily show that it was not a service inam,

and this opinion is supported by the contents of Ex. XII. The ina;n came up before the Inam Commissioner in 1860 for consideration, and it was

held that the land was inam held for Devadavam service and it was confirmed to the then holders under Rule III, Clause I to be held so long as the

service was rendered. Of course no quit rent was imposed. In column 8 it is stated that the inam is held for service as dancing girls. Govindamma,

the grandmother of the present defendants, was then mentioned as ''the present owner''. It is said that she was aged 70 and the present 2nd and

3rd defendants'' names do not appear as members of the family. Exs. V, VI, VII and VIII; are Cowles relating to inams in the suit village after the

inam settlement and here again the inam is described under the heading ""Sarva Dambala"". I need not make any further comment on this phrase

Sarva Dambala,"" as I have expressed my opinion in the matter.

In 1905 the defendants 2 and 3 seem to have expressed their willingness to render service when the Kalyanotsavam was performed. {Vide Ex.

G). Somehow they did not then raise the question as to the nature of the tenure. But when they thought that they may well raise the question as to

the nature of the tenure on which the inam was held they send Exs. H, J, in reply to the notices of the proprietor, denying that it was a service inam.

In Ex. L, however, they seem to be more guarded in their tone than in Exs. H and J, their previous replies. In Ex. I, they say:

We shall act in whatever manner the Court may decide. As it is a dispute relating to liability to do service, we will not get any justice by an enquiry

by your officials. I therefore pray that justice may be got rendered through Court. We have therefore submitted this.

It seems that they would not be satisfied with the result of an enquiry by the Tanadar before whom they were asked to appear by Ex. L. They

wanted the decision of a Court. If the Court was of opinion that it was a service tenure, they were willing to render service. Though this intention

was not expressed in so many words it is clear from their attitude in their written statement in the suit that such was their intention. In paragraph 4

they say:

While the defendants are raising bona fide contentions to ''the effect that it is not service inam, he (the Dharmakartha) should get it established,

through Court, that the suit inam is a service inam and then he should give the defendants an opportunity to serve and if they (defendants) fail to do

so, he should get them (defendants) removed from service through Court and should appoint another. The appointment of plaintiff made without

having recourse to the above procedure is not proper. If in this suit the Court is of opinion that it is a service inam, the defendants are ready to do

service or get service done.

Therefore their willingness to render service after decision by the Court is expressly stated.

I now pass on to the second point raised by Mr. Varadachari, namely, whether the proprietor is the lawful Dharmakartha of the suit temple. The

deed of gift, Ex. Q, does not expressly purport to transfer the legal rights of trusteeship in respect of the suit temple in the village to the donee. It is

unnecessary to observe that even if it purports so to transfer it is invalidsee Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty ILR (1876) Mad

It may be that there was an impression in the minds of the donor and the donee that the trusteeship has passed to the donee along with the

gift. The Courts below, in dealing with this point, find that the Archakas in performing the Svasthivachakam are now mentioning the name of

Gangadhara Rama Rao. This of course, is a finding of fact. But if there is no valid transfer of the trusteeship the fact that the Archakas thought that

the present proprietor of the village was the Dharmakartha and mentioned his name at the time of Svasthivachakam does not make him a

Dharmakartha. It is said that the Government recognised the present proprietor as the Dharmakartha, but this is not very clear. The District Munsif

erred in saying that in Exs. C to K the Government recognised the donee as the Dharmakartha, for Exs. C to G were addressed to the Zemindar

of Telaprolu. Exs. H and J had nothing to do with Government. Only Ex. K was addressed to the present proprietor by Government. But it can

scarcely be relied on as the considered opinion of the Government on a question pf this kind which was never raised before them and was neither

discussed nor adverted to in the letter, the only object of which was to release the inam from attachment. It is also said that the defendants

themselves recognised the present proprietor as Dharmakartha in Exs. H and J. But Exs. H and J are mere replies to notices in which the

proprietor described himself as Dharmakartha. The same remark applies to Ex. E. All these documents show that the defendants merely repeated

the description which the proprietor applied to himself. But even assuming that they intended anything more, their admission that he was

Dharmakartha cannot make him Dharmakartha, if otherwise he was not the Dharmakartha. These transactions would not estop them from raising

that point, for it cannot be said that these letters induced him to change his position for the worse. It follows that the proprietor is not the de jure

Dharmakartha of the temple. Mr. Ramadas says that even if he was not the de jure Dharmakartha he was certainly the de facto Dharmakartha, and

therefore, he was entitled to appoint. He relies on the decisions in Benarsi v. Altaf Husain (1921) 63 IC 171 Muiz-ud-din v. Mahomed Ikhlaq

(1923) 74 IC 756: 21 ALJ 516 an unreported judgment in S.A. No. 107 of 1923 and the observations at page 82 in Sheo Shankar Gir v.

Ramshewak Chowdhri ILR (1896) C 77

In Benarsi v. Altaf Husain (1921) 63 IC 171 it was held that the de facto Muthavalli of a mosque can sue to remove a person who is infringing

on the rights of the mosque and the defendant who is infringing on the rights of the mosque could not challenge the position of the de facto

Muthavalli. In Muiz-ud-din v. Mahomed Ikhlaq (1923) 74 IC 756 it was held that the son of the prior de facto Muthavalli could obtain refund of a

payment made by the father provided he credits it to the trust and uses it for the purpose of the trust. In S.A. No. 107 of 1923 it appears that the

point taken for the defendants was that the plaintiff was not the sole trustee. It was found that the plaintiff''s father and grandfather were looking

after the pallivasal from 1869 onwards and though it was not very clear it looked as if the plaintiff was one of the persons who might have acquired

the trusteeship by prescription or by exercising the right for a long time, i. e., from 1867 onwards. But the suit was only against the tenant for

possession of the site leased. The principle in all these three cases seems to be that a trust shall not fail for want of a lawful trustee and that where

the defendant is doing something unlawful or something to the detriment of the trust even a de facto trustee should be allowed to maintain a suit for

the benefit of the trust or institution. In the present case the suit is not on behalf of the trust or institution, nor is there any question of a de facto

manager maintaining a suit on behalf of the trust. All that can be said is that the de facto Dharmakartha called upon the defendants to perform the

services, dismissed them and appointed the plaintiff in the interests of the institution. The question therefore is whether the de facto Dharmakartha

can put an end to the tenure which was being held by the defendants and give it to another. I therefore think that these decisions relied on do not

apply here. In Sheo Shankar Gir v. Ramshewak Chowdhri ILR (1896) C 77 it was held that where there was an alienation on behalf of an

institution for the purpose of the institution, the alienee dealing with the de facto manager bona fide ought to be protected, and reference was made

to Hanuman Prasad''s case (1856) 6 MIA 393. It hasonly to be observed that no question of that kind arises in the present case.

I therefore think that the porprietor was not entitled to dismiss the defendants and appoint the plaintiff. I have no doubt that by 1923 or 1924

by adverse possession the present proprietor has completed his right as trustee by prescription and probably he would be entitled to call upon the

defendants to render service hereafter. But it cannot be said that he was entitled to do this in 1912 when he issued notices to which Exs. H and J

were replies or in 1915 when he issued Ex. P, and may express the hope that the defendants would not take the risk of denying their liability to

service hereafter if the present proprietor calls upon them to render services again. But so far as the present suit is concerned, on this ground, I

think the appeal has to be allowed.

Though no doubt their attitude in Exs. H and J may be said to be the cause of the whole trouble, they assumed a much better attitude in Ex. 1

and also in the written statement and though it looks as if they have succeeded by a fluke which somewhat looks like a technical point, there has

been no misconduct during the trial of the case. With regard to the nature of the tenure, as I have set forth in the beginning of this judgment, I think

there is very good justification for their being anxious to have the decision of the Court on the nature of the inam, and it cannot be said that their

conduct was contumacious whatever might be said as to the result of their denial that the suit land is service inam. express no opinion on the point,

i. e,., how far their attitude while denying the service tenure would have helped them, if the suit is otherwise maintainable. Seeing that they have

succeeded on the other point I do not see why they should be deprived of their costs. It is unnecessary to express any opinion on the 3rd and 4th

points raised by Mr. Varadachari.

The result is this appeal is allowed and the suit is dismissed with costs throughout.