P. V. Bheemsena Rao Vs. Sirigiri Pedda
Yella Reddi& Ors [1961] INSC 103 (16 March 1961)
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.
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 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.
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.
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 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 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 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.
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