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PETITIONER: THE ROMAN CATHOLIC MISSION

       Vs.

RESPONDENT: STATE OF MADRAS AND ANOTHER

DATE OF JUDGMENT: 14/01/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1457            1966 SCR  (3) 283  CITATOR INFO :  F          1968 SC1489  (3,12)

ACT: Madras  Hindu Religion Endowments Act (2 of 1927), s.  44-B- Validity. Melwaram-Resumption by Government-Period of limitation. Inam tair register-Value of

HEADNOTE: The  suit lands were granted as inam for the Performance  of puja in a Devasthanam.  As they had been alienated,  Revenue Divisional Officer, acting under s. 44B of the Madras  Hindu Religious  Endowments Act- 1926, resumed and regranted  them to the Devasthanam that the inam consisted of both  melwaram and   kudiwaram.   The  appellant  Mission,  which  was   in possession  of  the  lands as alienee,  filed  suits  for  a declaration  that the inam consisted only of  the  Melwaram, that the grant was a personal inam not liable to  resumption under s. 44B and that the section itself was ultra vires the Provincial Legislature.  The trial Court hold that the  inam consisted  of  both warm=, but that it was a  personal  inam outside  the  purview of s. 42B, and  therefore  decided  in favour  of the Mission.  On appeal the High  Court  reversed both the findings and held that the section was intra vires. In   appeals,  to  this  Court  by  the  Mission   and   the Devasthanam, HELD  :  (i) A concatenation of the several  powers  of  the Provincial  Legislature under the Government of  India  Act, 1915, furnished adequate scope for comprehensive legislation on  the  subject  of  inams  connected  with  religious  and charitable  endowments.   Even if there was any  doubt,  the Governor-General  in Council must have decided the  question as per r. 4 of the Devolution Rules under the Government  of India  Act, 1915, and put an end to any controversy  on  the matter.   The section and the amendment to it in 1946  would be sustained by s. 292 of the Government of India Act, 1935, and  the  power of the  Provincial  Legislature  thereunder. Section  44B  was thus fully within the  competence  of  the Provincial  legislature  and the same would be true  of  the

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corresponding  section, s. 35 of the Madras Hindu  Religious and   Charitable   Endowments  Act,  1951,   vis-a-vis   the Contitution, [297 C-E, H] (ii)The   lnam  Fair  Register  incorporated  an   official declaration which was theresult of detailed  inquiries. All evidence collected in of eachinam was carefully sifted and   considered  before  any  conclusion  was  reached   or declared.  In the absence of positive and proper evidence to the   contrary,  such  declaration  must   possess   supreme importance.   The  High  Court reached,  on  the  admissible evidence,  the right conclusion that the melwaram alone  was the  subject  of  the  inam and that  the  inam  was  always considered as remuneration for archaka service of the Devas- thanam.   The  finding  of the trial Court  that  it  was  a personal inam Was erroneous. [290 B; 294 D-E; 295 E, F] 284 Arunachalam  Chetty and other v. Venkatachalapathi, L.R.  56 I.A. 204, applied. (iii)  32  & 33 Vict. c. 29 only validated the  title  deeds granted  by  the  Inam Commission.  It did  not  create  any contract,  and  therefore  like any  other  grant  which  is resumable  on  breach  of  its  conditions,  this  inam  was resumable  according  to  its  terms  and  conditions.    On alienation, it was liable to resumption under s. 44B; and as the  resumption by the Government was of the melwarum  only, and since there is no period of limitation prescribed by any law, no question of adverse possession by the Mission  would arise. (298 E, F] Boddapalli Jagannadham v. Secretary of State, I.L R. 27 Mad. 16 and Subramaniam Chettiar v. Secretary of State, 28 M.L.J. 392, applied. (iv)By the resumption and regrant what was done was only  to restore the Devasthanam what it had lost. therefore, it  was not   a   case  of  putting  a   denonminational   religious institution at an advantage. [297 F-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION-: Civil Appeals Nos.  389  of 1964 and 69 of 1965. Appeals  from  the judgment and orders, dated  December  14, 1959 of the Madras High Court in A. S. Nos. 773 and 787  and Appeal No. 734 of 1954 respectively. S.G. Ramchandra lyer, J. B.  Dadachanji, O. C. Mathur and Ravinder  Narain, for the appellant (in C. A.  No..  389/64) Respondent No. 1 (in C. A. No. 69/65). Ranganadham Chetty and A. V. Rangam, for the respondent  No. 1 (in C. A. No. 389/64). A.V.  Viswanatha Sastri, and R. Gopalakrishnan,  for  the respondent No. 2 (in C. A. No. 389/64) and appellant (in  C. A. No. 69/65). The Judgment of the Court was delivered by Hidayatullah, J. In village Vandiyur of Madurai Taluk  there are  two  blocks  which  bear  the  names  Melapappathu  and Keelapappathu.   The former is 28.90 acres and bears  survey No. 45 (the old survey No. was 33 and the area 28.75 acres). The extent of the area in kanieas is 21-9.  The other  block is  Survey No. 78, area 20.88 acres (the old Survey No.  was 100  and the area 20.53 acres).  The extent of the  area  in kanies  is 17-10.  These lands ’were originally situated  in village  Managiri, and the lands were manyam lands, that  is to say, lands held at a low assessment or altogether free in consideration of services.  It is now clear from the  record and  indeed it is admitted on all hands that they  were  the

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subject  of an inam granted in ancient times by  the  Rulers and that they were held for the performance of pitja in  Sri Meenakshi  Sundareswaral Devasthanam, Madurai.  In 1948  the Revenue                             285 Divisional  Officer, Madurai, held, after enquiry, that  the inam  consisted  of both melwaram and kudiwaram and  as  the inam  lands  had been alienated the inam was  liable  to  be resumed.   His  order  was  passed  on  April  9,  1948  and purported  to be under s. 44B of the Madras Hindu  Religious Endowments Act, 1926 (Madras Act 2 of 1927).  The inam lands were resumed and regranted to the Devasthanam.  At that time the  lands  were  in the possession of  the  Roman  Catholic Mission  of St’ Mary’s Church, Madurai, and were so held  by the  Mission since October, 1894.  Against the order of  the Revenue  Divisional  Officer  the Mission  appealed  to  the District  Collector under s. 44B(4) of the Act.  The  appeal was  dismissed  on March 13, 1949.  The  District  Collector also held that the inam comprised both the Warams. The  Roman Catholic Mission thereupon instituted a  suit  in the  court  of  the  Subordinate.Judge,  Madurai  under   s. 44B(2)(d)  of  the  Act  for a  declaration  that  the  inam consisted  only  of  the  melwaram.   The  suit  was   later withdrawn  by the District Judge to his own file and it  was registered as O. S. 1 of 1954.  The Mission also  instituted another suit in the Court of the Subordinate Judge  Madurai, which  was also withdrawn by the District Judge to his  file and was registered as O. S. 2 of 1954.  The second suit  was a  mere general one.  It also sought the  declaration  which was the subject of O.S. 1 of 1954 and it questioned both the right  to resume the lands as well as the  resumption  which was ordered by the revenue courts.  In that suit the Mission contended that the particular inam was outside the scope  of s. 44B of the Madras Act 2 of 1927 as it was a personal inam and not liable to resumption under that section and that the section  itself was ultra vires the Provincial  Legislature. The  Province  of Madras (now the State of Madras)  and  Sri Meenakshi  Sundareswaral  Devasthanam,  Madurai  were   made defendants. The  District Judge dismissed O. S. No. 1 of  1954,  holding that  the inam consisted of both the warams.  In O. S. 2  of 1954  the same finding was repeated and it was further  held that  the  order  of  resumption  was  invalid  and  without jurisdiction  since  them inams in  question  were  personal inams  and did not come within the purview of s.  44B.   The District Judge granted a declaration to that effect and also issued  an injunction against the Devasthanam which had  not taken  possession  of  the  land  till  then.   Against  the decision in O. S. 1 of 1954 the Mission appealed and against the  decision  in O. S. 2 of 1954 the  Devasthanam  and  the State of Madras filed appeals.  A. S. 734 of 1954 was  filed by the Roman Catholic Mission against the decision in O.  S. 1 of 1954 286 A.S.  773 and 787 of 1954 were filed in O. S. 2 of  1954  by the  State of Madras and Sri Meenakshi  Sundareswaral,  etc. Devasthanam  respectively.  The High Court decided  all  the three  appeals on December 14, 1959 pronouncing  a  separate judgment in A. S. 734 of 1954 and disposing of the other two appeals by a common judgment. The  finding that both the warams were the subject  of  the, inam was reversed by the High Court and O. S. 1 of 1954  was decreed.   The  finding that the inams  were  personal  and, therefore, not liable to. be resumed was reversed and O.  S. 2  of  1954  was  ordered to be  dismissed  except  for  the

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modification  that the inam was held to be of  the  melwaram only,  which was the sole decision in the, other suit.   The High  Court repelled all contentions about the  ultra  vires nature of s. 44B.  ’Me High Court certified both the appeals as  fit for appeal to this Court and this appeal  and  Civil Appeal  69  of  1965  (Sri  Meenakshi  Sundareswaral,   etc. Devasthanam,  through  its Executive Officer  v.  The  Roman Catholic  Mission  and two others) have  been  filed.   This appeal relates to O. S. 2 ,of 1954 and is filed by the Roman Catholic  Mission  with  the  State  ..of  Madras  and   the Devasthanam as the respondents.  The companion appeal is  by the  Devasthanam and the answering respondent is  the  Roman Catholic  Mission.   This judgment will dispose of  the  two appeals. Before we mention the matters in controversy in this appeal, ,we  shall  give an outline of the transfers  by  which  the Roman  Catholic Mission came to be possessed of  the  lands. It  does not ,,appear to have been seriously  questioned  at any time that these ’.,lands originally belonged to  certain Mahomedans  as  proprietors.  It appears,  however,  (as  we shall see presently) that the land itself was not  subjected to any grant but that the theerva, that is, the rent paid in money,  alone  was the subject of the grant.   Although  the right  in respect of the concession in theerva was made  out in  the names of the Bhattars who were the Archakas  of  the Devasthanam,  both the concession as well as the  land  were subjected to alienations.  Even before May 12, 1861 half  of Melapappapathu  was purchased by one Krishnaswamy  Chettiar, son  of Andiappa Chettiar, and the other half was  purchased by him on May 1, 1861.  Similarly, Krishnaswami Chettiar had purchased  a  half  of  Keelapappapathu  from  the  original proprietors.    On  January  4,  1863  one  half  share   in Melapappapathu was purchased by one Chockalingam Pillai from Krishnaswamy:Chettiar.   He  also  purchased  one  half   of Krishnaswamy  Chettiar’s  part of Keelapappapathu,  for  the benefit of one Muthuramalingam                             287 Pillai.   In  October  1864 Chockalingam  granted  a  formal release   in favour of Muthuramalimgam.  The other  half  of Keelapappapathu,   which   continued   with   the   original proprietors was sold by them to Krishnaswamy Chettiar  (less one   kani)   on   July  18,  1867.   On   June   25,   1870 Muthuramalingam Pillai executed a usufructuary mortgage of a part   of   the  land  released  in  his  favour,   to   one Vairavalingam  Pillai son of Muthuramalingam Pillai.  It  is not clear whether he was his ’own son but it is not relevant to  inquire.  On December 14, 1871 Muthuramalingam’s  widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai,  half share of Melapappapathu and the quarter  share of  Keelapappapathu to Krishnaswami Chettiar.  The  mortgage of June 25, 1870 was paid off and Krishnaswamy redeemed  the property  on  September  11,  1872.   This  left  out   from Krishnaswamy Chettiar’s ownership one Kani of land which the original   proprietors  still  held.   On  June  17,   1872, Krishnaswamy Chattiar purchased that land and in this way he became  owner  of  all  the lands  comprised  in  these  two appeals.   Krishnaswamy executed a release and sale deed  in favour of Andiappa Chettiar of all the lands and it  appears that Andiappa Chettiar was the beneficiary of the  purchases and thus the real owner. On  October 20, 1894, the Roman Catholic  Mission  purchased for   Rs.   1,500  and  Rs.  6,500  the  greater   part   of Malapappapathu.  The remaining portion of this block and the Keelapappapathu block was purchased by one Anthonimuthu  and when  he  set  up his own title the  Mission  sued  him  and

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obtained  a decree in O. S. 45 of 1895 from  the  Sub-Court, Madurai  West.  The Roman Catholic Mission has thus been  in possession  of both the blocks ’from the last  century.   We shall now consider the contentions in the two appeals. The  High Court and the District Judge have differed on  two aspects  of this case.  Both the aspects are connected  with the nature of the inam in dispute.  The first is whether the inam was of the Melwaram alone or comprised both the  warams and the second is whether the inam was a personal inam which could  not be resumed or one granted for the service of  the temple, which could be resumed when there was an  alienation and  the  service  was  stopped.  On  the  question  of  the validity of s. 44B of the Madras Hindu Religious  Endowments Act,  1926,  the  District Judge  found  it  unnecessary  to express any opinion in view of his decision on the nature of the  inam  which he held to be personal and  not  liable  to resumption, but the High Court considered the -question  and held the provision to be valid.  In these appeals 288 these three points were mainly argued, along with a claim of adverse possession which the Roman Catholic Mission had  set up.   We shall begin by considering the nature of the  inam- first from the point of view, whether it comprised both  the warams  and  then from the point of view whether  it  was  a grant  to  the  temple  or  a grant  for  an  office  to  be remunerated  by the use of land or a grant of land  burdened with  service.  We shall next consider the arguments on  the basis  of which s. 44B is said to be ultra vires  and  void. Lastly,  we shall consider the question of  adverse  posses- sion. As there is no document recording the grant of inam and  its conditions,  one has to turn to a number of  documents  from which the High Court and the court below have drawn opposite conclusions regarding what was included in the inam.   There is, of course, no dispute that the inam must have  comprised the melwaram at least’ That it must have done in any  event. Thus the sole question is whether it comprised the kudiwaram also.   In  reaching the conclusion that  both  warams  were included,   the  District  Judge  took  into   consideration certified copies of certain leases from the record of an old case  O.  S.  No. 124 of 1944 of the  Court  of  Subordinate Judge, Madurai.  These documents are Exts.  B-4, 5, 6 and A- 68, 69 and 77.  Ex. B-4 is a karalnama (agreement)  executed for  the  fasli  years 1348 and 1349 by  which  the  lessees undertook to hand over 1/3 share of the produce as  melwaram and  to retain 2/3 share as kudiwaram from the lands  leased out of Keelapappapathu.  Ex.  B-5 is another lease for  cul- tivating,  the whole of Keelapappapathu nanja  (wet)  lands. Ex.   B-6  is  a  muchilika in respect  of  nanja  lands  in Keelapappapathu  by  which  lessee  undertook  to  pay  half produce  as  melwaram  and  to  retain  the  other  half  as kudiwaram.   These documents undoubtedly would  have  thrown light  upon the matter but they were not admissible  because they  were only copies.  The originals were not produced  at any  time nor was any foundation laid for the  establishment of  the  right to give secondary evidence.  The  High  Court rejected  them and it was plainly right in so deciding.   If we  leave  these documents out of consideration,  the  other documents do not show that the inam comprised the  kudiwaram also.   Ex.  A-3 is an extract from the village  account  of Managiri village, Mandakulam Taluk relating to inams.  It is for  the  years  1802-1803.   The  lands  are   sufficiently identified with the suit lands by the area.  The lands  were described  as Stelather inam Poruppa manyam,  conducted  for Meenakshi Sunderashwaral temple.  The poruppu being a low or

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quit rent according to the 5th Reprot 289 p.765  we get an indication as to what the  inam  comprised. The account shows that from the total assessment of 96  Pons O  fanoms  and 15 thuddus, the poruppu was only  19  Pons  2 fanoms  and’  3  thuddus.  Again in Ex.  A-5,  which  is  an extract  of  the Inam Account of Manigiri  village  of  1217 fasli  i.e., five years later, the heading was Inam  Enquiry Mauje  (village) Manigiri".  Now the, word Mauje is used  in respect  of villages in which there are, cultivators  owning cultivable  lands.   This has been so held for a  long  time [See Venkata Sastrulu v. Sitharamadu,(1) per Sadasiva  lyer, J. and Sethayya v. Somayajulu.](2) In the remarks column the poruppu  amount payable is stated and it almost  corresponds to  the  poruppu earlier mentioned, and there is  a  further mention  of the service of the temple.  The pattas  exhibits A-6  to A-8 of the years 1856, 1857 and 1860 also  speak  of sournadayam  manibam  poruppu which is  revenue  payable  in money at a concession The inamdars did not themselves  claim in the Inam enquiry any-thing more than the melwaram  rights and in Exts.  A-10 and A-1 1, which are the Inam  statements (1862) and the Inam Fair Register dated September 25,  1863. the  Stalathar  Poruppu Manibam is again mentioned  and  the Inam  were  registered  in  the names  of  Bhattars  as  the Sthaniks of the temple. The  only document in which a contrary notes was struck  was the  othi-deed (mortgage) Ex.  A-64 of 1876 by  which  Muthu Meenakshi  hid  mortgaged her Melwaram interest in  half  of the,  inam for 20 years in favour of Krishnaswamy  Chettiar. Muthu  Meenakshiammal was the wife of  Vikramapandia  Battar the,  sthaneekam  of the Devasthanam.  This  concerned  both Melapappapathu   and  Keelapappapathu  and   the   moragagee undertook to pay the poruppu.  In describing the property it was  stated that the melwaram and kudiwaram rights  were  in the  mortgagee’s possession.  This probably represented  the true  state  of affairs because, Krishnaswamy  Chettiar  was slowly acquiring through the years .the lands as well as the inam.  A similar statement was made by Krishnaswamy Chettiar in  Ex.  A-42 but it does not advance the case further.   It is  obvious that Krishnaswamy Chettiar had already  acquired not  only  the melawaram out also  the  kudikaram.   Neither document really showed that the inam comprised the kudiwaram as  well.   There is no other evidence of the  inclusion  of kudiwaram  in the inam and the dealings were with  melwaram- which alone the inamdars claimed at the Inam Enquiry. Although  the  matter has been discussed carefully  by  them High  Court,  we have reexamined the material and  set  down here- (1)  I.L.R.  38 Mad. 891.               (2) I.L.K.  52  Mad. 453,463. (P.C.) 290 what  we  consider to be adequate reasons for  holding  that there is no proof that the kudiwaram was the subject of  the inam.   All admissible matter points to the conclusion  that the  melwaram  alone  was the subject  of  the  grant.   The appellant in Civil Appeal No. 69 of 1965 took us through the two  judgments  and pressed upon us the view  of  the  trial Judge.  We have considered the two views and are of  opinion that the High Court has reached the -right conclusion on the admissible evidence on record.  Civil Appeal No. 69 of  1965 must  thus fail and this finding by us will be read  in  the other appeal also. We  shall now consider whether the inam was a personal  inam ,,or for the service of the Devasthanam.  The High Court has relied  upon  a decision of the Madras High  Court  in  Rasa

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Kondan v. Janaki Ammal.(1) Inams are of various kinds.  They are  classified on the basis of concession in land  revenue, that  is to ,say, whether the whole of the land  revenue  is remitted or a part, or whether the land is held subject to a payment  of money.  Where the whole of the land  revenue  is remitted  the  inam is known by names such  as  Sarva  Inam, Sarva  manyam,  Sarva dumbala or darobust  inam.   When  the right  to the soil is not included in the inam it  is  known according  to the share which was free such as Ardha  manyam (half),  chaturbhagam  (1/4) etc.  The third  kind  of  inam comprised  payment of a quit rent called the  poruppu.   The question  is whether this inam in which only a  poruppu  was -payable  comprised  the right to the soil.  In  Venkata  v. Sitamadu(2) it was held by the Privy Council that there  was no presumption in law that an inam grant, even if made to  a Brahmin, ,did not include the kudiwaram.  We have borne this observation  in mind but We hold that the evidence  in  this case  points  to the fact that the inam comprised  only  the melwaram.   It   was thus an inam where the  land  was  held subject  to  payment  of an amount as  quit  rent.   It  was granted  to  the archakas and was recorded  in  their  name. That  they alienated the lands is without any doubt and  the question  is  whether  the inam could  be  resumed  or  not. Section   44-B  inserted  by  the  Madras  Hindu   Religious -Endowment  (Amendment) Act 1934 (Madras Act XI of 1934)  in the  parent Act II of 1927 and further amended by the  Amend -ment Act X of 1946 reads :               "44-B.  (1):  Any  exchange,  gift,  sale   or               mortgage,  and any lease for a term  exceeding               live  year-,, of the whole or any  portion  of               any   inam   granted  for   the   support   or               maintenance of a math or temple or for the               (1) [1950] 2 M.L.J. 177.                (2) I.L.R. 38 Mad. 891.               performance of a charity or service  connected               therewith and made, confirmed or recognized by               the  British  Government, shall  be  null  and               void.               Explanation.-               (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               (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               a 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               recognized  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

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             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 melvaram  and  the               kudivarant or only of the melvaram.               (f)Where  any  inam  or part  of  an  inam  is               resumed  under this section, the Collector  or               the  District  Collector as the case  may  be,               shall by order, re-grant such inam or part-               (i)as an endowment to the math or temple  con-               cerned, or 292 Sub-section (1) of s. 44-B was the subject of interpretation in  P.  B. Bheemsena Rao v. Sirigiri  Paddayella  Reddi  and others.(1) The question then was whether s. 44-B(1)  covered a grant of land burdened with service as against a grant for an  ,office  to  be  remunerated by  the  use  of  land  but resumable  when the, service was not performed.  In  dealing with   these  two  distinct  -aspects  of  an  inam   grant, Gajendragadkar J. (as he then was) and Wanchoo J. point  out that the former is not a case of a service ,grant proper and such  a grant can only be resumed if the conditions  of  the grant  contemplate  a  resumption when the  service  is  not performed.   The other is a proper service inam  and  unless service  is performed resumption is inevitable.   They  also point  out that prior to the enactment of s. 44-B the  inams were  governed  by the Board’s Standing Orders  :  rule  54. That  laid  a  duty on Revenue Officers to  see  that  inams confirmed by the Inam Commissioner as being for the  service of some religious or charitable institution were not enjoyed without  the performance of service.  Grants were liable  to be  resumed when the whole or part of the land  granted  had been  alienated or lost.  Provision was, how,ever,  made  to deal  with  such  cases  in  two  ways.   Either  there  was resumption  or  the grantee was left in possession  and  the full  assessment  being imposed on him, the  difference  was made avail-able to the particular charity or institution for the service of which the grant was made.  Therefore, in  the case  of  personal inams burdened with  service,  when  the, service  was  not  being performed,  whether  there  was  an alienation  or not, the full assessment being demanded,  the personal   portion   was  left  to  the  grantee   but   the concessional portion was given to the charity concerned. After  the enactment of s. 44-D the Board’s  Standing  Order Rule, 54 was amended and inams for religious and  charitable purposes were classified : (i)  inams  granted  for  the performance of  a  charity  or service connected with a Hindu math or temple; and (ii) inams not falling under class (i). The  first two kinds were governed by the provisions of  the Madras ’Hindu Religious Endowments Act and the second by the Board’s  Standing Orders Rule 54.  Taking this history  into account  it is pointed out that s. 44-B(1), in spite of  the width  of  its  language  "is  only  open  to  a  restricted interpretation  and  includes in resumable  inams  those  in which  the  whole  of the income or a very  great  ,part  is required for the service and not large personal inams with (1)[1962] 1 S.C.R. 339. 2 93 a small or slight service.  On the other hand grant of  land made  t0  an officeholder to remunerate him for  service  is always  resumable if he ceases to hold office of to  perform service.

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The  rival contentions in this case may now  be  considered. The  Roman Catholic Mission submits that these are  personal inams and they do not come within s. 44-B.  This  submission was  accepted by the District Judge.  According to him,  the inam  was made to the ancestor of the persons named  in  the Inam  Fair  Register, subject to the obligation  to  perform service  in  the temple.  The inam is thus held  not  to  be attached to any office, archaks or other; nor is the  income remuneration for that office.  It is urged that such an inam is  alienable,  and if the service  continues,  the  alienee cannot  be  distributed and can enjoy the  inam.   The  High Court  accepted the contention of the Devasthanam  that  the inam  was  granted for the office of the  archakas  and  for service  as  such  In other words the inam  is  said  to  be attached to the office and thus incapable of alienation  and if alienated liable to resumption. In deciding which it is, certain documents throw a flood  of light.  In Ex.  A-3 to which we have already referred,  this inam  is called Devedayam inam and again as  stalethar  inam porupou  manyam  "conducted  for  Meenakshi   Sundareshwaral Temple,  thaatie Devasthanam".  The inam is entered  in  the names of Bhattars.  The word Devadayam ordinarily is used in revenue  records to describe lands attached to a temple  and in the dictionaries the meaning is ’lands or allowances  for the support of a temple’.  The expression sthalather poruppu manyam or shortly sthala manyam means land held at a low  or quit  rent.   The word poruppu also means quit  rent.   Thus this  document  shows that the Bhattars were  granted  these lands  in inam for the performance of service of the  temple but  not granted as inam personal to the grantee.  The  High Court  rightly pointed out that the description in the  same document  "Shanmugasundra Bhattar Mritunjaya  Bhattar  inam" was  merely a description of the inam with reference to  the inamdars, but could -not in the circumstances mean that  the inam was their personal inam. Further Ex.  A 11, the Inam Fair Register of 1863, does  not mention the name of the original grantee which it would have if  the grant was personal.  The names of the  two  Bhattars are   entered   but  as  athanikama  of   Pagoda   Meenakshi Sundareshwaral  and the inam is described as  Devadayam  for the  archakal service, that is to say, of puja  parichakaram in  the temple and it is stated that the  Inam  Commissioner confirmed the inam. 2 94 Now in a series of cases, the Inam Enquiry has been held  by the  Judicial  Committee to be a landmark.   In  Arunachalam Chetty  and Others v. Venkatachalapathi Guruswamigal(1)  the utmost  importance was attached to the Inam  Fair  Register, the  preparation of which was described as a great  act  of. State.   In Narayan Bhagwantrao Gosavi Balajiwala  v.  Gopal Vinayak Gosavi(2) this Court held, accepting the finding  of the Inam Commission, in the absence of other evidence,  that the  grant  was to a Devasthan and constituted  a  Devasthan Inam. Mr.  Ramachandra  Aiyer attempted to. prove to us  that  the expression ’act of state’ in the Privy Council judgment  was a  misuse of the term and cited some cases where the act  of state  has been discussed.  We do not find it  necessary  to refer to them.  The term act of state does not always mean a sovereign act against an alien which is neither grounded  in law nor does it pretend to be so.  The term means more  than that  because it has many meanings.  In State of  Saurashtra v..  Memon Haji Ismail Haji(3) other meanings of  this  term are  given.   Here it indicates an act in respect  of  which there  was an official declaration.  The Inam Fair  Register

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incorporated an official declaration which was the result of detailed  inquiries.  All evidence collected in  respect  of each  inam  was carefully sifted and considered  before  any conclusion  was  reached  or declared.  In  the  absence  of positive   and   proper  evidence  to  the   contrary   such declaration must possess supreme importance.  It  is significant that the Roman Catholic Mission  in  the plaint as, it was originally filed had said that the  office of  the  archaka was remunerated by the income of  lands  in dispute and by the income from other sources.  However, when the decision sub nom.  P. V. Bheemena Rao v. Yella Reddi  of the High Court of Madras was reported in (1954) 1 M.L.J. 384 it  pleaded  by an amendment that the inam  was  a  personal inam.  As the High Court in the judgment under appeal points out, there was litigation between the Bhattars and the Roman Catholic  Mission and the evidence we have  discussed,  must have been known to the Mission when the original plaint  was filed.   The fact that their plea was that this was an  inam for  remunerating the office of the archakas  represented  a true  reading  of these documents.  The Inam  Fair  Register speaks  of the inam as Devadayam and reads it as  permanent. If  the inam was to a Brahmin personally it would have  been shown as ’Brahmadayam’ and ’hereditary’. (1) L.R. 46 I.A. 204.                          (2) [1960]  1 S.C.R. 773 (3)  [1960] 1 S.C.R. 537, 543. 2 95               Finally in Ex.  A-10, which is a statement  of               Muthumeenakshiammal  who was in  enjoyment  of               the inam in  1863, it is stated "               "Particulars  as to how the inam was  obtained               and the abstract of the deeds.                                    (7)                                Nenjakani 39                During the time of our predecessors the said               sthalathar inam of Meenakshi Sundareswaral and               just  as our predecesors enjoyed, we  also  in               the aforesaid manibam, I Muthu Meenakshi Ammal               half  share,  I  Ponnammal  1/4th  share,   we               Kalyana  Battar and Bhinna Subba Battar  1/8th               share  and  we  Villu  Battar  alias  Shunmuga               Sundara   Battar  1/8th  share,  we   are   in               enjoyment of the aforesaid Maniba lands in the               aforesaid manner and we are paying the poruppu               manyam  due  in  respect thereof  as  per  our               proportionate share and we are also  remaining               in  enjoyment  of  the said  Manibams  as  our               predecessors  enjoyed.  We are doing  archakam               (pooja) and cooking in the aforesaid temple." This  clearly shows that the inam was always  considered  as remuneration  for archaka service of the temple and  on  its alienation  it is liable to resumption under S. 44-B.   Even before the incorporation of s. 44-B such an inam could  have been  resumed  by Government, under Standing  Order  of  the Board of Revenue Rule 54(1) (see Anjanayalu v.Sri Venugopala Rice  MilI  Ltd.(1). Mr.Ramchandra Aiyar even  attempted  to question  the  correctness  of this  case,  which  has  been followed consistently.  The finding of the learned  District Judge,  Madurai,  that  this  was a  personal  inam  to,  an individual  was  erroneous and the High Court was  right  in reversing it. Mr.  Ramchandra Aiyer next contends that s. 44-B  was  void’ when the legislature purported to enact it, and,  therefore, no  action could be taken under it.  This argument  is  many faceted  and’  often  it is obscure.   Shortly  stated,  the

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argument is this : The, inam was confirmed on September  25, 1863  under title deed 1354 by the Inam  Commissioner.   ’Me alienations  of  the rights, whatever they be,  were  before that  date.   Prior  to the Inam  Commission  there  was  no prohibition  and  the confirmation could  not  affect  prior alienations.  As the inam deeds were validated by an (1) I.L.R. 45 Mad. 620 (F.D.) at 624. 10 Sup.  Cl/66-6 296 Act  of the British Parliament (32 and 33 Vict. c.  29)  the right  to forfeit the inam concession or to resume it  could be exercised by the Crown only as the inam became a contract between  the  Secretary  of State for India  and  the  inam- holder.   Section  44-B  is  said  to  be  void  because  it conflicted  with  this  position  and  enabled  the  Revenue Officers to order resumption.  The resumption or  forfeiture itself  was said to be ineffective without the order  either of the Governor General or Governor in exercise of his indi- vidual  judgment  and also because the right to  resume  the inam  was  said  to be extinguished  by  prescription.   The resumption was characterised as a forfeiture and was said to be  void under s. 299 of the Government of India  Act,  1935 and  Arts.  31 and 296 of the  Constitution.   Madras  Hindu Religious and Charitable Endowments Act (XIX of 1951)  which by  s. 35, reenacts s. 44-B was further said to be void  as, it  was  said,  it seeks to  protect  only  Hindu  religious institutions  and  not those belonging to  other  religions. The power of the provincial legislature to enact s. 44-B  in 1934  or  1946 was also challenged under the  Government  of India  Act  1915  and the Government  of  India  Act,  1935, respectively. The  District Judge did not consider any of these  arguments except the last, because he decided the issue of  resumption against  the  Devasthanam  and the  State  Government.   The District Judge decided that the section was validly  enacted by the provincial legislature.  The District Judge, however, mentioned  in  the  judgment all the  arguments  which  were raised before him and they were the arguments which we  have set  down above.  However, in the High Court most  of  these arguments  do not appear to have been advanced  because  the High Court judgment is silent about them.  We intimated  Mr. Ramchandra Aiyer that we would not allow any argument to  be advanced  which the High Court was not invited to  consider. In the High Court the validity of s. 44-B of the Madras  Act and  S. 35 of the Act of 1951 was considered from the  point of view of the powers of the Provincial legislature when the former was enacted and from the angle of the Constitution in respect  of both.  We shall consider these arguments  mainly from the same two standpoints. The powers of the Provincial legislatures under the  Govern- ment of India Act, 1915 were determined under the Devolution Rules made by the Governor General in Council under ss. 45-A and 129-A of the Government of India Act.  By these rules  a classification  of  subjects  was made for  the  purpose  of distinguishing  the functions of the local  governments  and local   legislatures  of  Governors’  provinces   from   the functions of the Governor                             297 General   in  Council  and  the  Indian  Legislature.    The Devolution  Rules  set  out in two  lists  the  subjects  so classified and any matter in the list of provincial subjects set  out  in  Part II of Schedule I was  excluded  from  any central subject.  Under rule 4 of these rules, if any  doubt arose  as  to  whether a particular matter did  or  did  not relate  to  a provincial subject, the  Governor  General  in

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Council  was to decide whether the matter did or did not  so relate and his decision was final. At this distance of time, it is somewhat inept for a  Court, without  a proper inquiry, to decide whether the  powers  of the  Provincial  legislature did or did not  extend  to  the making  of  s.  44-B.  For aught  we  know,  this  identical question  might  have been raised and the  decision  of  the Governor General in Council obtained.  That would be end  of the  matter.   No one seems to have challenged  the  section although  numerous  inams were resumed under  that  section. However, considering the matter in principle we do not  feel any   doubt   about  the  competence   of   the   Provincial legislature.  As the District Judge and the High Court  have rightly   pointed   out,  the  powers  of   the   Provincial legislatures  extended  over  land  tenures,  land   revenue administration  and religious and charitable endowments.   A concatenation of these several powers must obviously furnish adequate  scope  for under. taking  the  most  comprehensive legislation  on  the subject of inams in general  and  inams connected  with  religious  and  charitable  endowments   in particular.    Section  44-B  was  thus  fully  within   the competence of the Provincial legislature. The next question which was considered by the High Court  as whether resuming and regranting the inam to a Hindu  temple, offended  the Constitution.  The High Court did  not  accept this submission.  It is obvious that by the transfer of  the inam the temple was deprived of a benefit and the transferee had  no  right to hold that benefit.  What was done  was  to restore  to  the temple what it had lost and  this  was  not putting   a  denominational  religious  institution  at   an advantage. once we hold that the Provincial legislature had  competence to  enact  the impugned section, it would  follow  that  the section  would be sustained by s. 292 of the  Government  of India  Act,  935.   Indeed,  the  power  of  the  Provincial legislature  under the act of 193 5 was no whit  less.  than that  of  the legislature which enacted  the  section.   Any amendment of the section in 1946 would have clear  authority even under the Act of 1935.  And the some may be said of the Madras  Hindu Religious and Charitable Act, 1951 vis  a  vis the Constitution. 298  The  theory that contracts between the Secretary  of  State for India and the inam-holders came into existence after the passing of 32 & 33 Vict. c. 29 and that this took the matter out of the powers conferred by the Devolution Rules upon the Provincial  Legislatures, is equally fallacious.   What  had really  happened was this.  In 1858, when the Government  of the East India Company, which held the territories in  trust from  the  Crown,  came to an end,  the  British  Parliament passed "An Act for the better Government of India".  We  are not concerned with its provisions.  A year later another Act was  passed to amend the Act of 1858.  It provided that  any deed,  contract  or  other instrument  for  the  purpose  of disposal  of  real estate in India, vested  in  Her  Majesty under the Act of 1858 must be expressed to be executed as on behalf  of the Secretary of State for India or by  order  of the  Governor  General in Council or the Governor  of  ’Fort Saint George or of Bombay in Council.  Although this statute was  there,  the title deeds which were issued by  the  Inam Commissioner  were not expressed to be executed by order  of the Governor in, Council and purported to have been executed on behalf of the Governor in Council instead of on behalf of the Secretary of State for India in Council.  This created a doubt  about the validity of the title created  under  them.

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By  the enactment of 32 and 33 Vict. c. 29 the  title  deeds for inam lands were validated.  They were to be read and  to have the same effect as if they were execute by order of the Governor in Council and on behalf of the Secretary of  State for India in Council.  In this way the flaw in the  numerous grants  was  removed without having to reissue  fresh  title deeds. This  legislation  did  not  create  a  contract.   It  only validated the old title deeds and no more.  To read into the grants  by  which inams were created, a contract  which  was inviolable except by-resumption by the Crown is to read into the Acts of British Parliament something which is not there. Like  any  other grant which is resumable on breach  of  its conditions,  these inams were resumable according  to  their terms and conditions.  There was nothing in the inam  title- deeds  or  these  statutes which  inhibited  the  Provincial legislature  from  enacting  s. 44-B  under  its,  undoubted powers or the Collector from resuming the inam on breach  of its conditions under the power granted by the section. The other arguments on the subject of the validity of s. 44- B  need  not detain us.  They proceed  on  obliterating  the difference  between resumption of an inam for breach of  its terms  and forfeiture which is a kind of punishment  annexed by law to some illegal 29 9 act  or negligence, in the owner or possessor of  land.   We are  not  here  concerned  with  forfeiture  but  with   the resumption  of a concession granted by Government, which  is occasioned  by  the  alienation  of  the  concession  to   a stranger.  Any argument based on forfeiture is entirely  out of  place.  Similarly, the arguments based on bona  vacantia or  deprivation  of property sufficiently indicated  by  the reliance  on  the  articles of  the  constitution  mentioned earlier   by  us  cannot  help,  partly  because  they   are irrelevant  and mainly because no such arguments  appear  to have been advanced in the High Court.  We accordingly reject the contention that s. 44-B or the resumption under it  were invalid. There  remains only the question of adverse possession.   In Boddapalli  Jagannadham and anr. v. Secretary of State(1  it was held that there is no period of limitation prescribed by any  law within which alone Government. should exercise  its prerogative  of  imposing assessment on land  liable  to  be assessed  with  public revenue.  This case was  followed  in Subramaniam  Chettiar  v.  Secretary of State(2)  .  As  the resumption  was  of the melwaram only these  rulings  apply. Mr.  Ramchandra Aiyer admitted that he had no  authority  to the contrary.  This point has no force.  This appeal  (Civil Appeal 389 of 1964) must also fail. The  two appeals will accordingly be dismissed  with  costs. There will be a right to set off the costs. Appeals dismissed. (1)  I.L.R. 27 Mad. 16. (2)  28 M.L.J. 392. 300