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PETITIONER: T. K. LAKSHMANA IYER & ORS.

       Vs.

RESPONDENT: STATE OF MADRAS & ORS.

DATE OF JUDGMENT: 26/03/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. HIDAYATULLAH, M. (CJ) VAIDYIALINGAM, C.A. HEGDE, K.S. GROVER, A.N.

CITATION:  1968 AIR 1489            1968 SCR  (3) 542

ACT: Madras  Hindu Religious Endowments Act, 1926 (2 of  1927)-S. 44B  inserted by Act 11 of 1934-Inams granted by Hindu  King for  performance  of  services  at  temple-Whether  Included melwaram  rights only or kudiwaram also-Whether  granted  in respect  of personal services or hereditary offices-S.  44-B whether retrospective-Whether applicable to inams  alienated before 1934-Alienees Whether could claim adverse possession.

HEADNOTE: Inams were granted by Hindu kings for performance of certain servicer, (e.g. watchmen, music players etc.) in the ancient temple,  of Thirumoolanathaswami.  The inams were  confirmed by  the  British Government.  For over 80  years  the  inams were-enjoyed  by  alienees from the inamdars.  By  an  order passed  on April 10, 1947 under s. 44-B of the Madras  Hindu Religious  Endowments  Act,  1926,  the  Revenue  Divisional Officer  resumed  the inam lands and regranted them  to  the temple.   His order was confirmed on appeal by the  District Collector.   Both  these  authorities held  that  the  inams comprised both melwaram and kudiwaram rights.  The  alienees instituted  a  suit in the Court of  the  Subordinate  Judge under  the  proviso  to s. 44-B (2) (d) (ii)  asking  for  a decree  declaring  that  the inam grants  consisted  of  the melwaram  only.   They  filed  another  suit  asking  for  a declaration that the aforesaid order passed by the Collector was  a nullity.  In appeals against the order of  the  trial judge  the High Court decided against the plaintiffs  except as  regards Dasi inams.  Against the High court’s order  the plaintiff-appellants  came to this Court.  It was  contended on their behalf that : (i) the inam grants did not  comprise the  Kudiwaram; (ii) the inams were personal inams  burdened with  services and were not resumable under s.(iii)  Section 44-B(2)  was  not  retrospective in operation  and  did  not authorise  resumption  of  the inams on the  ground  of  any alienation thereof made before 1934 when it came (iv)there was no alienation of the inams as contemplated by s.   44-B (2)  (a)  (i); and (v) the tight of resumption of  the  inam lands was extinguished by adverse possession of the lands by

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the alienees for 60 years.  HELD:  (i) The documents in evidence showed that the  lands were  being  enjoyed  by the inamdars and  were  granted  as inams.  The amount of the assesment or melwaram was very low and  could not be an adequate remuneration for the  services to  be rendered.  The plaintiffs claimed title to the  lands under  a  grant from the inamdars on the  footing  that  the inamdars  were entitled to the kudiwaram and  the  melwaram. The conclusion is irresistible that the inam comprised  both the warams.[547 F-G] (ii)  There  is a well-recognised  distinction  between  the grant  of the land burdened with a condition of service  and the  grant of land as remuneration for an  office.   Section 44-B  does  not  apply to a personal inam  burdened  with  a condition  of service.  It applies to an inam granted to  an office  holder  as remuneration for his  services  connected with  a  math or temple as also to an inam  granted  to  the institution  directly.  The inams in the present cases  were not personal inams.  They were inams granted 543 to  office-holders  as  remuneration  for  services  to   be rendered  by  them and were within the purview of  s.  44-B. [548 B-C]. (iii)  The words ’has made’ in s. 44-B(2)(a)(i) take in  all alienations past and future and not only future  alienations or  alienation  made  after the  section  came  into  force. Section 44-B(2) is in its direct operation prospective as it authorises only future resumption after it came into  force. It  is not properly called retrospective "because a part  of the  requisites  for  its action is  drawn,  from-,  a  time antecedent  to its passing." The inams in the  present  case were resumable under s. 44B(2)(a)(i) though the  alienations were made before 1934. [548 G-549B]. Maxwell  on  interpretation on Statutes 11th  Ed.,  p.  211, relied on. (iv)  The appellants admitted that they held the  land  from the inamdars under a cowle lease and at no earlier stage did the  appellants  contend that the lease was not  within  the purview  of s. 44-B(2)(a)(i).  The plea that the  lease  was from  year  to  year and hence outside the  purview  of  the section could not be allowed to be raised for the first time in this Court. [849 E-H]. (v)  The appellants being lessees their possession  was  not adverse  to the inamdars.  A fortiori, their possession  was not  adverse to the Government under whom the inamdars  held the inam lands.  They did not acquire any prescriptive title to  the  kudiwaram  rights either against  the  inamdars  or against  the  Government.  The  Government  could  therefore resume  the inam lands under s. 44-B(2) and  dispossess  the inamdars and the plaintiffs claiming as lessees under  then. [550 B-C]. [The  question  whether  an alienee  from  the  inamdar  can acquire a prescriptive title to the kudiwaram rights in  the inam  lands and thereby defeat the latter’s right to  resume the  inam did not on the above view arise for  decision  and the court therefore expressed no opinion on it.] Roman  Catholic Mission v. State of Madras, [1966] 3  S.C.R. 283, referred to. Forbes v. Noor Mahomed Tuquee, [1870] 13 M.I.A. 438, 464 and P  V. Dheenuena Rao v. Sirigiri Pedda Yella Reddi, [1962]  1 S.C.R. 339, relied on.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 484 and 485 of 1965. Appeals by special leave from the judgment and decree  dated December  14, 1959 of the Madras High Court in Appeals  Nos. 808 and 746 of 1954. S.T.  Desai, P. C. Bhartari, and J., B.  Dadachanji,  for the appellants (in both the appeals). A.V.  Rangam, for respondents Nos.  I to 3 (in  C.A.  No. 484 of 1965). R.   Gopalakrishnan,  for respondents Nos.  I to 3 (In  C.A. No.485 of1965). B.   Dutta,  for respondents Nos. 4, 9 and II (in  C.A.  No. 484  of 1965) and respondents Nos. 13 to 17 and 20 (in  C.A. No. 485 of 1965). 544 The Judgment of the Court was delivered by Bachawat,  J.  In the village of Thenkarai  in  the  Madurai District    there    is   an   ancient   temple    of    Sri Thirumoolanathaswami.  Inams were granted by Hindu kings for performance  of  services  ,of  watchman,  palanquin-bearer, background  music player, dancing girl,  musical  instrument player,   mason,  blacksmith-carpenter,  potter,   washerman connected with the temple.  The inams were confirmed by  the British  Government.  For over 80 years, the inams  were  in the enjoyment of alienees from inamdars.  By an order passed on  April  10,  1947  under S.  44-B  of  the  Madras  Hindu Religious  Endowments Act, the Revenue  Divisional  Officer, Usilampatti resumed the inam lands and regranted them to the temple.   On October 17, 1947, this order was  confirmed  on appeal  by the District Collector.  The  Revenue  Divisional Officer  and  the  District Collector held  that  the  inams comprised  both melwaram and kudiwaram rights in  the  land. The  orders  were passed ,on notice to  the  alienees.   The alienees instituted a suit in the ,Court of the  Subordinate Judge, Madurai under the proviso to s. 44-B(2)(d)(ii) asking for a decree declaring that the inam grants consisted of the melwaram  only.  The suit was withdrawn to the Court of  the District  Judge,  Madurai and registered as O.S.  No.  3  of 1954.   They,  instituted another suit in the Court  of  the Sub-ordinate  Judge, Madurai, asking for a decree  declaring that the ,order of the Collector dated October 17, 1947  was a  nullity.  This suit was transferred to the Court  of  the District  Judge and registered as O.S. No. 4 of  1954.   The District  Judge  dismissed O.S. No. 3 of 1954.   He  decreed O.S. No. 4 of 1954 and declared that the order resuming  the inam lands was illegal and a nullity.  The plaintiffs  filed an  appeal  registered as A.S. No. 746 of 1954 in  the  High Court of Madras from the decree in O.S. No. 3 of 1954.   The High Court dismissed the appeal.  The State of Madras  filed an appeal registered as A.S. No. 808 of 1954 from the decree in  O.S. No. 4 of 1954.  The High Court allowed  the  appeal and dismissed the suit with respect to all the inams  except the  Dasi  inam.  Regarding the Dasi inam,  the  High  Court dismissed the appeal as the inam was enfranchised and  could not  be  resumed.  It is from the decree of the  High  Court dismissing the suits in respect of the other inams that  the plaintiffs have filed these appeals after obtaining  special leave. The  two courts concurrently held that the  inams  comprised both  the  kudiwaram and the melwaram.  The  District  Judge held  that  the  right  to  resume  an  inam  could  not  be extinguished by adverse possession, and that, in any  event, the  claim of adverse possession was not  established.   The High Court held that assuming the right of resumption  could be  so  extinguished,  it  was  not  established  that   the

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plaintiffs  and  their predecessors-in-title  were  in  pOS- session  of the inam lands adversely to the inamdars or  the Gov- 545 ernment.   The  District  Judge held  that  the  inams  were personal  inams  burdened  with services and  the  order  of resumption  was therefore illegal and a nullity.   The  High Court reversed this finding and held that the inams were for performance  of services connected with the temple and  were resumable  under s. 44-B.  The District Judge held  that  s. 44-B  was retrospective in operation.  On this  last  point, the High Court did not express any opinion. It  may be noted that O.S. Nos. 3 and 4 of 1954  were  tried along with O.S. Nos.  I and 2 of 1954 and disposed of by the District  Judge by a common judgment.  O.S. Nos. 1 and 2  of 1954  related  to inams granted for performance of  puja  in another temple.  From the decrees passed in O.S. Nos. 1  and 2  of  1954,  there  were appeals  to  the  High  Court  and subsequently  appeals to this Court.  The judgment in  those appeals  is reported in Roman Catholic Mission v.  State  of Madras(1).   One  of the points in all the  four  suits  was whether   s.  44-B  was  ultra  vires  the  powers  of   the legislature.    This   Court  held   that   the   Provincial Legislature was competent to enact s. 44-B and the amendment to it. On  behalf of the appellants, Mr.S. T. Desai submitted  that (1) the inam grants did not comprise the kudiwaram; (2)  the inams  were personal inams burdened with services  and  were not  resumable under s. 44-B; (3) Section 44-B (2)  was  not retrospective in operation and did not authorise  resumption of  the inams on the ground of any alienation  thereof  made before  1934;  (4) there was no alienation of the  inams  as contemplated  by  s. 44-B (2) (a) (i) and (5) the  right  of resumption  of  the inam lands was extinguished  by  adverse possession of the lands by the alienees for over 60 years. The Madras Hindu Religious Endowments Act, 1926 (Madras  Act II  of 1927) was passed on January 19, 1927.   Section  44-B was inserted in the present Act by Madras Act XI of 1934 and was  later amended by Madras Act V of 1944 and  Madras  Act, of  1946.  This section corresponds to s. 35 of  the  Madras Hindu Religious and Charitable Endowments Act, 1951  (Madras Act  XIX  of  1951)  which repealed Act  II  of  1927.   The material provisions of s. 44-B are in these terms :               "44-B.   (1)  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 support or maintenance of               a  math or temple or for the performance of  a               charity  or  service connected  therewith  and               made,  confirmed or recognised by the  British               Government, shall be null and void.               Explanation.   Nothing contained in this  sub-               section  shall  affect or  derogate  from  the               rights and obligations (1)  [1966] 3 S.C.R. 283. 546 of  the landholder and tenant in respect of any land as  de- fined in the Madras Estates Land Act, 1908. (2)(a)  The  Collector,  may on his own motion,  or  on  the application  of the trustee of the math or temple or of  the Assistant  Commissioner  or of the Board or  of  any  person having  interest in the math or temple who has obtained  the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely :-

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(i)  that  the  holder  of such inam or  part  has  made  an exchange, gift, sale or mortgage of the same or any  portion thereof  or has granted a lease of the same or  any  portion thereof for term exceeding five years, or (ii)  that  the holder of such inam or part  has  failed  to perform  or make the necessary arrangements for  performing, in  accordance  with  the custom or usage of  such  math  or temple, the charity or service for performing which the inam had  been  made,  confirmed or  recognised  by  the  British Government,  or any part of the said charity or service,  as the case may be, or (iii)  that  the math or temple has ceased to exist  or  the charity  or  service  in  question has  in  any  way  become impossible of performance. When passing an order under this clause, the Collector shall determine  whether  such inam or the  inam  comprising  such part,  as the case may be, is a grant of both  the  melwaram and the kudiwaram or only of the melwaram. (f)Where any main or part of an inam is resumed under this section,  the  Collector or the District Collector,  as  the case ’may be, shall, by order, regrant such inam or part- (i)as on endowment to the math or temple concerned,or (ii)in  case of resumption on the ground that the  math  or temple has ceased to exist or that the charity or service in question has in any way become impossible of performance, 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." 547 The inam title deeds, the entries in the inam fair  register prepared at the time of the confirmation of the inams by the Inams Commissioner in 1863 and the contemporaneous statement made  by the inamdars are of the same pattern in respect  of all the inams.  It is sufficient to refer to Exs.  B-4,  B-5 and B-6 relating to the inam for the service of Sree  Padarn Thangi (palanquin-bearers).  The statement, Ex.  B-4, shows- that  in  fasli 1272 corresponding  to  1862-63,  Veerabadra Mudali, Periasami Mudali, Andiappa Mudali were in  enjoyment of the inam and rendering the service under the direction of the Paisaldars or the trustees of the temple.  They made the following  statement: "For taking the deities in  procession round  the  village  during the festival in  the  temple  of Tirumulanathaswami and Akilandeswari Amman in the village of Kovil Thenkarai the aforesaid land has been granted as inam. The paisaldars appointed our ancestors and got service  from them.    The  aforesaid  manyam  was  in  their   enjoyment. Afterwards  the manyam was divided and during fasli  36,  it was registered in the name of myself individual No. 1 and in the  names of the fathers of individuals Nos. 2 and 3.  They were  rendering the service and enjoying manyam and  in  the same  manner.  We have been rendering the aforesaid  service and  enjoying  the  manyam." The entries in  the  inam  fair register,  Ex.   B-5  show that the  inam  belonged  to  the category of Devadayam and was for the service, of Sree Padam Thangi  which  was being then rendered,  that  the  original grant was made to the temple before fasli 1212 corresponding to  18023,  and that in 1863 the inam was being  enjoyed  by Verrabadra  Mudali,  Periasami Mudali and  Andiappa  Mudali. The  title  deed acknowledged their title  to  Devadayan  or pagoda  service  inam to 11.47 acres of land  held  for  the service of Sree Padam Thangi and confirmed the inam to  them and   their   successors  tax-free  to   be   held   without interference  so  long as the conditions of the  grant  were duly fulfilled.

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Those  documents show that the lands were being  enjoyed  by the  inamdars and were granted as inams.  The amount of  the assessment or melwaram was very low and could not be an ade- quate  remuneration. for the services to be  rendered.   The plaintiffs claimed title to the lands under a grant from the inamdars  on the footing that the inamdars were entitled  to the   kudiwaram  and  the  melwaram.   The   conclusion   is irresistible that the inam comprised both the warams. The  inams  were originally granted, to the temple  for  the performance  of services connected therewith.  The  trustees of  the temple appointed persons to perform  those  services and  placed the inams in their possession to be  enjoyed  by them  as  remuneration for the services to  be  rendered  by them.  The Inam Commission confirmed the grants of the inams in favour of the hereditary officeholders then rendering the services.  Where there were several 548 holders  of the office, the inams were shown to be in  their enjoyment in equal shares.  It is quite clear that the inams were  granted  .to  the holders  of  hereditary  offices  as remuneration  for  services  to  -be  rendered  by  them  in connection with the temple. There is a well-recognised distinction between the grant  of the land burdened with a condition of service and the  grant of  land as remuneration for an office, see, Forbes v.  Noor Mahomed  Tuquee(1).   Section  44-B  does  not  apply  to  a personal  inam burdened with a condition of service, See  P. V.  Bheemsena  Rao v. Siyrigiri Pedda  Yella  Reddi(2).   It applies   to  an  inam  granted  to  an  ,office-holder   as remuneration  for  his  services connected with  a  math  or temple as also to an inam granted to the institution  direc- tly.  The inams in the present case were not personal inams. They  were inams granted to office-holders  as  remuneration for  services  to be rendered by them and  were  within  the purview of 44-B. The next question is whether s. 44-B allows resumption of an inam  falling  within the purview of the section  where  the inam  was  alienated before the section came into  force  in 1934.   Subsection  (1)  of s. 44-B renders  null  and  void certain alienations of the inam.  Sub-section (2) authorises resumption of the inam on certain grounds.  Sub-section  (2) is  not  dependent upon sub-sec. (1) and  allows  resumption even  in  cases where there has been no  alienation  of  the inam.   In the present case, we are not concerned  with  the retrospective  operation of sub-see. (1) of s. 44-B, and  we express no opinion on it.  But there can be no-doubt that s. 44-B  (2)(a)(i) allows a resumption of the inam where  there has  ,been an alienation of the inam either before or  after 1934.  Even apart from s. 44-B, any inam whatever its nature could  be resumed for failure to perform the  conditions  of the grant.  Subject to certain restrictions and  safeguards, paragraph  2 of the Board’s Standing Order No. 54  permitted resumption  of religious and charitable inams on the  ground that  the  land  was  alienated or  otherwise  lost  to  the institution  or service to which it once belonged or on  the ground  that the terms of the grant were not observed.   The object ,of s. 44-B was to define and enlarge the, grounds on which  the  inams could be resumed and to  devise  a  proper procedure for the resumption.  On general grounds of  public policy,  the legislature has declared that the inam  may  be resumed on any of the three grounds mentioned therein.   The first  ground  is that the holder of the inam  has  made  an alienation.  The words "has made" in sub.-S. (2)(a)(i) takes in  all  alienations  past and future and  not  only  future alienations or alienations made after the section came  into

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force.’  If  there has been any alienation at any  time  the first  ground -,exists and the inam may be resumed under  s. 44-B.  The words "has failed" in sub.-s. (2)(a)(ii) and  the words "has ceased" and (1) (1870) 13 H.I.A.438,464. (2) [1962] 1 S.C.R. 339. 549 "has  become"  in sub.-s.  (2)(a)(iii)  similarly  authorise resumption  of  the inam if the other grounds  exist  though they  may  have arisen earlier.  Section 44-B(2) is  in  its direct  operation prospective as it authorises  only  future resumption  after  it came into force.  It is  not  properly called  retrospective "because a part of the requisites  for its action is drawn from a time antecedent to its  passing," See Maxwell on Interpretation of Statutes, 1 1 the, p. 21 1. The,  inams in the present case are resumable under  S.  44- B(2)(a)(i) though the alienations were made before 1934. Section 44-B(2)(a)(i) is attracted if the holder of the inam has made an exchange, gift, sale or mortgage of the inam  or has  granted a lease of it for a term exceeding five  years. In  the  plaint in Suit O.S. No. 4 of  1954  the  plaintiffs claimed that one Kunjanna Ayyar, their  predecessor-in-title purchased  the  lands from the inamdars  before  1861.   The plaintiffs failed to prove that the inamdars sold the lands. The only direct evidence as to how Kunjanna Ayyar came  into possession  of  the suit lands is furnished by Ex.   A-2,  a statement  made by the inam holders to the Madurai  District Collector on August 14, 1868.  It shows that Kunjanna  Ayyar had  taken the lands on cowle from the inamdars.   The  word "cowle"  means a lease.  In Wilson’s Glossary it  is  stated that the word ordinarily denotes a lease and not a mortgage. Before  the District-Collector the plaintiffs admitted  that they  were  holding  under  a  cowle  lease.   The  District Collector held that the alienation was within the purview of S.  44-B.  The High Court also held that the plaintiffs  and their  predecessor-in-title were in enjoyment of  the  lands under  the  lease.   At no stage of  the  litigation  either before  the revenue authorities or in the plaint  or  before the  District Judge or in the High Court did the  plaintiffs contend  that the alienation in their favour was not  within the  purview of S. 44-B (2) (a) (i).  As a matter  of  fact, the  case made in the plaint was that their  predecessor-in- title  had  purchased the land from the inamdars.   Such  an alienation   is  clearly  within  the  purview  of  S.   44- B(2)(a)(i).   For  the  first  time  in  this  Court  it  is contended  that  the alienation was by way of a  lease  from year  to  year.  It may be conceded that all lease&  do  not come within the purview of S. 44-B(2)(a)(i).  The km must be for a term exceed’ - 5 years.  A lease from year to year  is not a lease for a term exceeding 5 years howsoever long  the lessee  might  have continued in possession of  the  demised lands.   But  we think that the plaintiffs ought not  to  be allowed  to  raise at this late stage the  novel  contention that the lease was from year  to year’.  This contention  is contrary to the case made by them in the plaint.   Moreover, the  materials on the record do not support the  contention. The  plaintiffs  and  their  predecessor-in-title  were   in continuous  possession of the lands for over 80 years  under the  cowle  lease.  The original cowle is  not  forthcoming. The  plaintiffs  claimed  to be permanent  alienees  of  the lands.   In  all  these circumstances, we  are  inclined  to presume that the cowle granted 550 a permanent lease and the inams were resumable under s. 44-B (2)(a)(i).

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There  is  no  period  of  limitation  prescribed  for   the initiation  of  proceedings under s. 44-B(2).   The  section gave a new statutory right of resumption of the inams.  On a resumption  of the inams, the title, if any, of all  persons claiming through the inamdars to any subordinate interest in the   inams  stood  determined.   Kunjanna  Ayyar  and   his successors-in-title were lessees of the inam lands under the inamdars.   During  the continuance of  the  tenancy,  their possession  was  not adverse to the inamdars.   A  fortiori, their  possession  *as not adverse to the  Government  under whom the inamdars held the inam lands.  They did not acquire any  prescriptive  title  to  the  kudiwaram  rights  either against  the  inamdars  or  against  the  Government.    The Government  could,  therefore, resume the  inam  lands  made under  s.  44-B(2)  and  dispossess  the  inamdars  and  the plaintiffs  claiming  as lessees under them.   The  question whether an alienee from the inamdar can acquire prescriptive title to the kudiwaram rights in the inam lands against  the Government  and thereby defeat the latter’s right to  resume the  inam  does not, therefore, arise for decision,  and  we express  no opinion on it.  It, may be noted that  in  Roman Catholic Mission v. State of Madras(’) this Court held  that there  is no limitation barring imposition of assessment  on the land after resuming the melwaram. It follows that both the kudiwaram and melwaram rights  were rightly resumed under s. 44-B(2)(4)(i). In  the  result,  the appeals are  dismissed.   In  all  the circumstances  of  the case, there will be no  order  as  to costs. G.C.                     Appeals dismissed. (1) [1966]  3 S.C.R.283,299. 551