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PETITIONER: P. V. BHEEMSENA RAO

       Vs.

RESPONDENT: SIRIGIRI PEDDA YELLA REDDIAND OTHERS

DATE OF JUDGMENT: 16/03/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1961 AIR 1350            1962 SCR  (1) 339  CITATOR INFO :  RF         1966 SC1457  (12)  R          1968 SC1489  (9)

ACT: Inam  grant-Personal, burdened with  service--Alienation  by grantee  and  service discontinued-If resumable  by  revenue authorities-Madras Hindu Religious Endowments Act, No. 11 of 1927, ss- 44-B(1), 44-B(2)(a)(1) and (II), Board’s  Standing Order 54. 340

HEADNOTE: The property in dispute was granted in inam to the ancestors of the predecessors-in-interest of the plaintiff-respondents for the performance of parak service in certain temples  but the grantees alienated considerable portion of the  property and ceased to perform the parak service.  On being moved  by the  trustees under s. 44-B(2)(a)(i) and (ii) of the  Madras Hindu   Religious   Endowments  Act,   1927,   the   revenue authorities  after holding an enquiry ordered resumption  of the  inam  lands  and regranted them  to  the  temple.   The alienees  thereupon  filed  a  suit  in  which  their   main contention   was  that  the  revenue  authorities   had   no jurisdiction to order the resumption of the inam under S.44- B of the Act which is in these terms- "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 performance of a charity or service connected  with  a  math or temple and  made,  confirmed  or recognised  by  the British Government, shall  be  null  and void." Both the trial court and the High Court on appeal held  that the  inam was a personal inam burdened with service  to  the temple  and the case did not fall under s. 44-B of the  Act. On  appeal  by the trustees with a certificate of  the  High Court, Held, that the distinction between a grant for an office  to be  remunerated  by  the use of land and  a  grant  of  land burdened  with  service  is that the former  is  a  case  of service  grant  and  is resumable when the  service  is  not performed;  the latter is not a service grant as such but  a grant in favour of a person though burdened with service and

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its resumption will depend upon whether the circumstances in which  the grant was made establish a condition that it  was resumable if the service was not performed. Shrimant  Lakhamgouda  v. Raosaheb  Baswantrao,  (1931)  LXI M.L.J. 449, referred to. Though  on  a  wide interpretation  s.  44-B(1)  might  also include  personal inams burdened with service it  is  really confined to inams directly granted to the temple or  service inams for the purpose of a temple or math or inams the whole income  of which is meant for charity and does  not  include personal  inams  burdened with service.   Such  inams  would continue  to be dealt with under Board’s Standing  Order  54 class (b) as introduced by the amendment to that order.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 752 of 1957. Appeal  from the judgment and decree dated January 8,  1954, of the Madras High Court in Second Appeal No. 312 of 1949.  A.  V.  Viswanatha Sastri and P. V. B. Tatachari,  for  the appellant. 341 P.Somasundaram and T. Satyanarayana, for the respondents. 1961.  March 16.  The Judgment of the Court was delivered by WANCHOO,  J.-This  appeal on a certificate  granted  by  the Andhra  Pradesh  High  Court  raises  the  question  of  the interpretation of s. 44-B(1) of the Madras, Hindu  Religious Endowments Act No. II of 1927 (hereinafter called the  Act). The  point arises in this way.  The property in dispute  was originally   granted  in  inam  to  the  ancestors  of   the predecessors-in-interest  of the plaintiffs-respondents  for the performance of parak service in the pagodas (temples) of village  Panyam  in Nandyal Taluk of the  Kurnool  District. The   grantees  of  the  land  in  this  inam  alienated   a considerable  portion of it and also ceased to  perform  the parak  service. In consequence, the trustees of the  temples at  Panyam applied. to the Sub-Collector under s.  44-B  (2) (a) (i) and (ii) of the Act for the resumption of the  lands and  their  regrant to the temples on the  ground  that  the holders  of  the  inam had alienated the  property  and  had failed to perform the service required of them.  An  inquiry was conducted into these allegations, and it was held by the Revenue Divisional Officer, Nandyal, that the inam had  been granted on the condition of parak service being rendered and that  there had been breach of the condition on  failure  to perform the service and also that the lands comprised in the inam  had been alienated in a manner falling within s.  44-B (2) (a) (i) of the Act.  On these findings the resumption of the  inam lands was ordered and the inam was  re-granted  to the temples in Panyam village. The alienees took the  matter in appeal to the Collector but failed.  Thereupon they filed the  suit  out of which the present appeal has  arisen;  and their main contention was that. the revenue authorities  had no jurisdiction to order the resumption of the inam under s. 44-B.   The  suit  was resisted by  the  trustees  who  were defendants  to  it and their case was that the, inam  was  a religious service inam in the sense of being emoluments  for the performance of service and 342 alternatively  that even if the grant was a  personal  inam, burdened  with the performance of parak service,  the  grant was  conditional  on the performance of the service  and  as there was breach of this obligation, the resumption and  re- grant were justified under s. 44-B.

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Certain  preliminary facts are not in dispute now.   It  has been  found by all the courts that the inam grant  comprised both  the warams.  It has also been found that the grant  to the  inamdar was personal to him though burdened with  parak service  and  not a service inam in the sense  of  the  inam constituting emoluments of any office.  On the finding  that the  inam was a personal inam burdened with service  to  the temple  the  trial  court held that the case  did  not  fall within  s.  44-B of the Act.  On appeal the  district  court confirmed the decree of the trial court.  In the High  Court on  second appeal the finding as to the inam being  of  both warams  was not contested and it was conceded that it was  a personal inam burdened with service.  The only question that was  agitated there was whether the case would  fall  within the  four  corners  of s. 44-B even if the  inam  which  was granted  in  the present case was, a personal inam  of  both warams burdened with service to the temple.  The High  Court held   against  the  trustees  and  dismissed  the   appeal. Thereupon  the  trustees who are the  appellants  before  us applied  for  a certificate which was granted to  them;  and that is how the matter has come up before us. Section 44-B (1) is in these terms:-               "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  performance  of  a  charity  or   service               connected  with  a math or  temple  and  made,               confirmed   or  recognised  by   the   British               Government, shall be null and void." The  question for consideration is whether a personal   inam burdened with service to a temple can be said to come within the  meaning  of  the  words  "any  inam  granted  for   the performance  of a service connected with a temple".   It  is urged that the words used in s.    44-B (1) are of very wide import and any personal 343 grant of land  howsoever large, if it is burdened with  some service  to  a temple howsoever small, would be  within  the meaning  of these words and would therefore come within  the terms of s.44-B (1).  The High Court has repelled this  wide construction of the words used in s. 44-B (1), and we  think rightly.   The distinction between a grant for an office  to be  remunerated  by  the use of land and  a  grant  of  land burdened  with  service  is well known in  Hindu  law.   The former  is a case of a service grant and is  resumable  when the  service is not performed.  The latter is not a  service grant  as  such  but a grant in favour of  a  person  though burdened  with service and its resumption will  depend  upon whether  the  circumstances  in which  the  grant  was  made establish  a condition that it was resumable if the  service was  not  performed: (see Shrimant  Lakhamgouda  Basavprabhu Sardesai v. Raosaheb Baswantrao alias Annasaheb Subedar  and Others  (1)).   The question therefore is  whether  s.  44-B covers  only  the first type of grant,  (namely,  a  service grant) and not a personal grant burdened with service. Prior  to  the  introduction  of s. 44-B  in  the  Act,  the enforcement  of  a  condition  of  a  grant  in  favour   of charitable  and  religious  institutions in  Madras  was  by taking  recourse to Board’s Standing Order 54.  Under  para. 1 of this Order, a duty was laid on the revenue officers  to see  that inams confirmed by the Inam Commissioner  for  the benefit  of or for services to be rendered to any  religious and charitable institution are not enjoyed without the terms of  the  grant  being fulfilled.   Under  para.  2  thereof, religious and charitable inams were liable to be resumed  on

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the ground that the whole or a portion of the land had  been alienated or lost to the institution or service to which  it once  belonged  or  that the terms of  the  grant  were  not observed.   Provision  was also made in the  Order  for  the authorities  which  would  exercise  the  power  to  resume. Further  provisions  in that Order show that  the  intention normally was not to dispossess the inamdar even in the event of  failure to perform the conditions of the grant  but  the land was subjected to (1)  (1931) LXI M.L.J. 449. 344 full assessment and the assessment was made available to the institution  in  lieu of the service lost.  In the  case  of personal inams burdened with service in particular what  was usually  resumed in the event of nonperformance  of  service with  or  without alienation was that portion of  the  grant which represented the value of the service burdened and  not that  which was personal and there was no injustice in  this course for as we have already said a personal inam  burdened with  service  was  granted to  an  individual  for  himself though,  he was required to perform certain services to  the temple.   Therefore, in case he failed to do so there  might be resumption of such portion of the inam as would represent the burden of the service leaving the rest to him. It is in this background that we have to examine s. 44-B (1) introduced in the Act in 1934 and see whether personal inams burdened with service are included within its ambit.  It may be mentioned that on the introduction of s. 44-B (1) in  the Act.,  B.S.O.  54 was amended and religious  and  charitable inams  which were all governed till then by it were  divided into two classes, namely- (a)  inams granted for the performance of a charity    or service connected with a Hindu math or temple;    and (b)  inams not falling under class (a). Inams  falling  under class (a) were to be governed  by  the provisions  of the Act while inams falling under  class  (b) were  to  be  governed by B.S.O.  54  as  heretofore.   This amendment  would also show that all religious  inams,  i.e., inams  which  had some connection howsoever  slight  with  a temple  or  other  religious  institution  were  not  to  be governed by s. 44-B and only those inams which were  granted for the performance of a charity or service connected with a Hindu  math  or temple wore to be dealt with under  s.  44-B while  others  would  still be governed by  B.S.O.  54.   We therefore  agree  with  the High  Court  that  this  history affords  a  clue to the interpretation of s.  44-B  (1)  and suggests that though the words used in s. 44-B are open to a wide interpretation, the intention was to 345 bring within its purview only those inams which were granted directly  to  the  temple and also those  inams  which  were granted  for  the  performance  of  a  charity  or   service connected with a math or temple, i.e., service inams or such inams  the  whole income of which was for  charity  and  not those  inams which were personal inams though burdened  with some  service to a temple or math.  As we have already  said the land granted under a personal inam burdened with service may  be  very  large and the service expected  may  be  very slight, and it could not be the intention of the legislature when  it enacted s. 44-B (1) that large personal inams  with slight  service attached to them should be resumed  and  re- granted  to  the  temple under s. 44-B (1)  for  failure  to perform  the service with which the grant was burdened.   It would  make no difference to the validity of  this  argument even  if the service attached absorbed a larger  portion  of

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the inam leaving only a smaller portion to the grantee. This conclusion is in our opinion enforced if we look at el. (iii) of s. 44-B (2)(a) which permits resumption of an  inam on  the ground that either the math or temple has ceased  to exist  or  the  service in question has in  any  way  become impossible  of  performance.   Now  it  could  not  be   the intention of the legislature, where an inam was granted as a personal inam though burdened with some service to a  temple or math, that such inam should be resumed simply because the math or temple has ceased to exist or for some other  reason the  service  has  become impossible  of  performance.   The nature  of a personal inam burdened with service is that  it is meant for the individual to whom it is granted though the individual is required to perform some service to the temple also.   The  legislature  could not have  intended  when  it enacted s. 44-B (2)(a)(iii) that even such an inam should be resumed  when the math or temple ceases to exist.  But  this would be the result if the wide interpretation contended for by the appellants is accepted.  In such a case obviously the personal  portion of the grant has to be separated from  the service portion 44 346 and  if the service is not performed it is only the  service portion that is liable to resumption.  Further if we look at s. 44-B (2)(f)(i), it provides that where an inam is resumed under s. 44-B (1) it shall be re-granted as an endowment  to the temple or math concerned In the case of a personal  inam burdened  with service it will mean that if the  service  is not  performed the whole inam would be liable to  resumption and  would be re-granted to the temple, though the inam  was granted  to an individual and the service with which it  was burdened  might have been ’slight, the remaining  income  of the  inam  being  intended  as  a  personal  grant  to   the individual.   Therefore when s. 44-B(2)(f)(i)  provides  for re-grant of the resumed inam to the temple it presumes  that the  whole of the inam resumed was meant for service of  the temple and there was no element of personal grant in it.  It is on that basis that we can understand the re-grant of  the resumed  inam to the temple, the idea behind the  word  "re- grant"  being  that originally also it was granted  for  the temple  though  as  a  service  inam.   Similarly,  s.   44- B(2)(f)(ii)  provides  that  where the math  or  temple  has ceased  to  exist and an inam is resumed on that  ground  it shall  be  re-granted  as  an endowment  to  the  Board  for appropriation  to such religious, educational or  charitable purposes  not inconsistent with the objects of such math  or temple, as the Board may direct.  Here again it seems to  us that the legislature could not have intended that a personal inam  granted to an individual though burdened with  service should  be resumed when the temple has ceased to  exist  and the service could not be performed and should be taken  over by the Board as an endowment for such purposes as the  Board may  direct, Such a provision would completely overlook  the personal  part  of a personal inam  burdened  with  service. Therefore, the view taken by the High Court that s. 44-B(1), though  on  a  wide interpretation  it  might  also  include personal inams burdened with service, is really confined  to inams  directly granted to the temple or service inams.  for the  purpose of a temple or math or inams the whole  of  the income of which 347 is  meant  for charity and does not include  personal  inams burdened  with  service,  is  correct.   Such  inams   would continue  to  be dealt with under B.S.O. 54,  class  (b)  as

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introduced  by the amendment to that Order.  In  this  view, there is no force in this appeal and it is hereby  dismissed with costs.                                        Appeal dismissed.