C. Periaswami Goundan & Ors Vs.
Sundaresa Iyer & Ors  INSC 167 (31 July 1964)
31/07/1964 SUBBARAO, K.
CITATION: 1965 AIR 516 1964 SCR (8) 347
Inam grant-Suit for ejectment-Defendant
raised plea of Lost Grant-When presumption of Lost Grant arises-Whether grant
is melvaram or both varams --Right of Archakas-Whether Archakas can claim
remuneration in a suit for ejectment.
The appellants filed suits for the recovery
of certain properties from the possession of the respondents. The plaintiffs
were the trustees of the temples and the defendants were the archakas and the
alienees of the suit properties. These suits were based on title and the relief
asked for was the eviction of the archakas from the suit property as they,
according to the plaintiffs, (appellants) had no title to remain in possession
The plaintiff claimed that the suit properties were the properties of the deity
and that the defendants had no right therein. The archakas raised the plea that
the title of the deity was confined only to melvaram in the plaint-schedule
lands and that they had title to the Kudivarani. Both the Trial Court and the
High Court confirmed the title of the deity to both the interests (Varams) and
negatived the title of the defendant- Archakas. The High Court also held that
the archakas were entitled to have a portion of the said properties allotted to
them towards their remuneration for the services to the temples and gave a
decree directing the division of the said properties into two halves and
putting the archakas in possession of one half. Against this decree of the High
Court both the archakas and the trustees (appellants) preferred cross appeals
to this Court.
348 The main point for consideration was
whether the High Court, having held that the title to the suit property vested
in the deity, had jurisdiction to compel the trustees of the temple to put the
archakas in possession of specified extent of property towards their
Held:(i) The principle of a Lost Grant can
only be invoked where there is no acceptable evidence of the terms of the
grant. In the present case there is no scope for invoking the doctrine of Lost
Grant as the terms of the grant are clear from the recitals in the lnam
register and the inam statement, which conclusively establish that both the
Varams were granted to the deity.
Sankaranarayana Pillayan v. H.R.E. Board,
Madras I.L.R. 1949 Mad. 585, Buddu Satyanarayana v. Konduru Venkatapayya:
 S.C.R. 1001, Maginiram Sitaram v.
Kasturbai Manibhai, (1921) L.R. 49 I.A. 54 and Mohamed Muzafar Ali Musavi V. Jabeda
Khatun, (1930) L.R. 57 A. 125, relied on.
(ii)The High Court erred in making an
allocation of the lands between the trustees and the archakas in a suit for
ejectment because there was absolutely no material either in the pleadings or
in the evidence to make any such apportionment. 'Me High Court had De option
but to deliver possession to the plaintiffs who had established their title to
the suit properties. In a suit for framing a scheme for temple a court may in
an appropriate case put the archaka in possession of a portion of the temple
lands towards his remuneration for services of the temple; but such
considerations are out of place in a suit for ejectment.
Brahmayya v. Rajaswaraswami Temple, A.I.R.
1953 ',fad. 580 as Venkatadri V. Seshacharlu, I.L.R. 1948 Mad. 46. referred to.
(iii)On the facts of this case it was held
that the conduct of the archakas, was consistent with the recitals in the inam
register, namely, that what was granted to the deity was the land i.e. both the
Varams and that they had been put in enjoyment the said land in their capacity
as archakas and de facto trustees. They could not by mortgaging or otherwise
alienating the property claim any right in derogation of the title of the
deity. They also cannot claim any right because their names are mentioned in
addition to deity in the Inam register. Their names in addition to the deity
are mentioned as they were in possession of the land in their capacity as de facto
Arunachalam Chetti v. Venkata Chalapathi
Guruswamligal, (1920) I.L.R. 43 Mad. 253 and Secretary of State for India v.
Vidhya Thirta Swamiga, I.L.R. 1942 Mad. 893, referred to.
Narayanamurthi V. Achaya Sastrulu, A.I.R.
1925 Mad. 411 relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 646-652 of 1960.
349 Appeals from the judgment and decree
dated November 28, 1962 of the Madras High Court in 385, 259, 260, 385 of 1947
A.V. Viswanatha Sastri and R. Gopalakrishnan,
for the appellant (in C.A. Nos. 648, 649 and 650 of 1960) and for the
respondents (in C.A. Nos. 651 and 652 of 1960).
T.V. R. Tatachari, for respondents Nos. 1. 2.
5 and 6 (in C.A. No. 648 of 1960) and appellants (in C.A. No. 652 of 1960).
S.T. Desai, K. Jayaram and R. Ganapathy Iyer,
for respondents No. 1, 3, 4, 5, 8 to 11, 15, 16, 18, 19 and 21 (in C.A. No. 649
of 1960) respondents Nos. 1, 2 and 8 (in C.A. No. 650 of 1960) and the
appellants (in C.A. No. 651 of 1960).
July 31, 1964. The Judgment of the Court was
delivered by SUBBA RAO, J. These five appeals by certificate arise out of
Original Suits Nos. 183, 184 and 185 of 1945 filed in the Court of the
Subordinate Judge, Coimbator, Madras State.
O.S. No. 183 of 1945 relates to properties
claimed on behalf of Sri Chowleswaraswami temple. Periaswami Goundar and Samana
Goundar, the plaintiffs in the said suit, are the trustees of the said temple.
They filed the suit for the recovery of the plaint-scheduled properties from
the defendants who are the archakas and the alienees from them on the ground
that the said properties were the properties of the deity and that the
defendants had no right therein.
They also claimed mesne profits for a period
of 3 years prior to the suit. The defendants filed a written statement
admitting the claim of the deity to the melvaram interest in the properties but
claimed that the archakas owned the kudivaram therein and that some of the said
properties were validly transferred to the alienees.
O.S. No. 184 of 1945 was filed in the said
Court by the trustees of Sri Pongali Amman temple situated in the village of
Vengambur for the recovery of the properties 350 mentioned in the schedule
attached to the plaint. The defendants, who are the archakas and alienees from
them, inter alia, pleaded that only melvaram in the said properties was granted
to the deity and that the archakas owned the kudivaram therein and that they
had validly alienated their interest in the said properties in favour of the
O.S. No. 185 of 1945 was filed in the same
Court by the trustees of Sri Varadaraja Perumal temple situated in Vengambur
village . The plaintiffs sought to recover the properties mentioned in the
schedule annexed to the plaint from the archakas and the alienees from them on
the same grounds and the defendants raised similar pleas. It is not necessary
to mention other defences raised in the written statements filed in the three
suits as nothing turns upon them in these appeals.
The main issue in O.S. No. 183 of 1945, O.S.
No. 184 of 1945 and O.S. No. 185 of 1945 was whether the inam grants made to
the three temples consisted of both varams or melvaram alone.
The learned Subordinate Judge tried the said
suits along with two other suits and delivered a common judgment therein. On
the said issue he held in all the three suits that the grants to the three
deities comprised both the varams. He further held that the alienations made by
the archakas prior to May 16, 1931, were binding on the trustees of the
respective temples and that the alienations made subsequent to that date were
liable to be set aside. In the result the learned Subordinate Judge gave a
decree in each of the suits for possession of the plaint-schedule properties
except those covered by the alienations effected before May 16, 1931. He also
decreed mesne profits to the plaintiffs for a period of 3 years prior to the
suits and also subsequent profits from the date of the suits to the date of
delivery of possession at the rate fixed by him.
The defendants in the said suits preferred
appeals to the High Court of Madras, being Appeals Nos. 259, 260 and 385 of
1947. The said appeals were heard by a Division Bench of the said High Court,
consisting of Satyanarayana Rao and Rajagopalan, JJ. The High Court agreed with
the 351 trial court on the finding relating to the nature of the grants to the
temples, that is to say it held that the grants to the temples comprised both
the varams, namely, melvaram and kudivaram. The learned Judges, for the first
time, though there was no pleading, no issue and no contention in the trial
Court, held that the archakas were entitled to have a portion of the said
properties allotted to them towards their remuneration for the services to the
temples and gave a decree directing the division of the said properties into
two halves and putting the archakas in possession of one half. They did not
disturb the finding of the learned Subordinate Judge in regard to the
alienations, that is they maintained the alienations made before May 16, 1931.
Against the decree of the High Court in A.S.
No. 259 of 1947 and A.S. No. 385 of 1947 both the archakas and the trustees
preferred appeals to this Court questioning the correctness of the decree of
the High Court in so far as it went against them. Against the decree in A.S. No.
260 of 1947 no appeal was filed by the archakas, but the trustees preferred an
appeal questioning that part of the decree directing a part of the properties
to be put in possession of the archakas.
Mr. Desai and Mr. Tatachari, appearing for
the archakas in the different appeals, contended that the Courts below, having
regard to the consistent and continuous conduct of enjoyment as absolute owners
of the properties by the archakas spread over a long period of time, should
have invoked the doctrine of lost grant particularly when there was no clear
and convincing evidence of the terms of the grant. Alternatively, they argued
that the Courts should have held, on a fair construction of the recitals found
in the inam statements and the inam register, that only melvaram was granted to
Mr. Viswanatha Sastri, learned counsel for
the trustees, contested this position. He would say that there is no scope for
invoking the doctrine of lost grant as the recitals in the inam register and
the inam statement, which are of great evidentiary value, conclusively
establish that both the 352 varams were granted to the deity and that all the
documents, or most of them, disclosing the conduct of the archakas would
support the conclusion that both the varams were so granted to the deity.
At the outset it would be convenient to
notice briefly the scope of the doctrine of lost grant, as the learned counsel
for the appellants have strongly relied upon it. The doctrine of lost grant
with its limitations has been succinctly explained by the Judicial Committee in
Sankara- narayana Pillayan v. H.R.E. Board, Madras(1). The temple in that case
had 4 kattalais. Though the temple had a general trustee, each of the kattalais
was in the charge of a special trustee or trustees. In regard to one of the
kattalais after meeting all the expenses there remained a surplus which the
trustees claimed for their own benefit and in fact they were utilizing the
surplus for the benefit of their families. It was contended by the appellants
that they were the owners of the suit properties, which were subject only to a
charge in favour of the kattalai for the performance of the worship according
to the prescribed scale. The Judicial Committee, after noticing the earlier
decisions, observed:- "The presumption, it was stated, of an origin in
some lawful title which the Courts have so often readily made in order to
support pos- sessory rights long and quietly enjoyed, arises where no actual
proof of title is forthcoming, and the rule has to be resorted to because of
the failure of actual evidence.
In the present case, where there is ample and
convincing proof of the nature of the grant, the object of the endowment and
the capacity of the persons claiming the user and enjoyment, the rule can
hardly have any application." In the result the Judicial Committee held
that the proper- ties were granted only to the deity and that the trustees had
no claim to any surplus income. The said principle has been accepted by this
Court in Buddu Satyanarayana V.
Konduru Venkatapayya(2). There a question
similar to (1) I.L.R. 1948 Mad. 585,605-606.
(2) (1953) 1 S.C.R. 1001, 1003.
353 that now raised was considered. The
archakas claimed, relying upon the doctrine of lost grant, that under the
original inam grant only the melvaram interest was given to the deity.
Rejecting that contention, Das, J., speaking for the Court, observed:
"There is no doubt, on the authorities,
that a presumption of an origin in some lawful title may in certain
circumstances be made to support possessory rights long and quietly enjoyed
where no actual proof of title is forthcoming but it is equally well
established that that presumption cannot 'be made where there is sufficient
evidence and convincing proof of the nature of the grant an the persons to whom
it was made." The basis of this doctrine is clearly brought out by two
judgments of the Judicial Committee. Lord Buck-master, delivering the judgment
in Maginiram Sitaram v. Kasturbhai Manibhai(1), observed :
"At the lapse of 100 years, when every
party to the original transaction has passed away, and it becomes completely
impossible to ascertain what were the circumstances which caused the original
grant to be made, it is only following the policy which the Courts always
adopt, of securing as far as possible quiet possession to people who are in
apparent lawful holding of an estate, to assume that the grant was lawfully and
not unlawfully made." Viscount Sumner in Mohamed Muzafar Ali Musavi v.
Jabeda Khatun(2) said much to the same effect thus "The presumption of an
origin in some lawful title, which the Courts have so often readily made in
order to support possessory rights, long and quietly enjoyed, where no actual
proof of title is forthcoming, is one which is not a mere (1)  L.R.49 I.A.
51 Sup. Court.-23 (2)  L.R. 57 I.A.
354 branch of the law of evidence. It is
resorted to because of the failure of actual evidence." It is, therefore,
clear that the said principle can only be invoked where there is no acceptable
evidence of the terms of the grant.
In these appeals the trustees filed copies of
the relevant extracts of the inam register and the statements filed by the
ancestors of the archakas during the inam enquiry in support of the contention
that both the varams were granted to the deity. The evidentiary value of the
recitals in the inam register has been emphasized by the Judicial Committee in
more than one decision. In Arunachalam Chetti v. Venkata Chalapathi
Guruswamigal(1), the Judicial Committee expressed its view on the evidentiary
value of the recitals in inam register thus:
"It is true that the making of this
register was for the ultimate purpose of determining whether or not the lands
were tax free. But it must not be forgotten that the preparation of this register
was a great act of state and its preparation and contents were the subject of
much consideration under elaborately detailed reports and minutes. It is to be
remembered that the Inam Commissioners, through their officials, made enquiry
on the spot, heard evidence and examined documents, and, with regard to each
individual property, the Government was put in possession not only of the
conclusion come to as to whether the land was tax free, but of a statement of
the history and tenure of the property itself.
While their Lordships do not doubt that such
a report would not displace actual and authentic evidence in individual cases,
yet the Board when such is not available, cannot fail to attach the utmost
importance, as part of the history of the property, to the information set
forth in the inam register." (1)  I.L.R. 43 Mad. 253.
355 In the latest decision of the Judicial
Committee reported in Sankaranayana Pillayan's case(1), it reiterated the same
position when it said:
"The question arose in a recent case
before this Board with reference to a Madras inam [see Secretary of State for
India v. Vidhya Thirta Swamigal(2)], where it was held that the title deeds and
the entries in the inam register are evidence of the true intent and effect of
the transaction and of the character of the right which was being recognized
and continued. The entries in the inam register and the description of the
inamdar therein were accepted as indications of the nature and quantum of the
right and the interest created in the land."This view of the Judicial
Committee has been accepted and applied by the Madras High Court in many
decisions when it was called upon to decide on the conflicting claims of a
trustee and a archaka to the properties dealt with in the inam registers.
The documents relating to Sri Pongali Amman
temple are Exs. P-2 and P-3. Ex. P-2 is the statement filed by an ancestor of
the present archakas before the Inam Commissioner. It is of the year 1862. Ex.
P-3 is an extract of ,the inam register. As observed by the Judicial Committee,
the entries made in the said register are the result of an elaborate enquiry
based upon oral evidence, on the spot enquiry and scrutiny of available
accounts and records. The inam statement is only one of the pieces of evidence
which the Inam Commissioner might have taken into consideration in compiling
the inam register. The recitals in the statement must, therefore, give Place to
the recitals in the inam register, though an attempt shall be made to harmonize
them, if possible. Before considering the recitals in Ex. P-3 it is necessary
to bear in mind the common case i.e., that it is the case of both the archakas
and the trustees that Ex.
P-3 deals only with the property that was
given to the deity. But the dispute is as regards the extent of the (1) I.L.R.
 Mad. 585. (2) 1.L.R  Mad. 893, 908 (P.C.).
356 interest in the property that was given
to the deity. WaS it only the Melvaram in the said property that was granted to
the deity or was it that both the varams therein were granted to the deity. Now
let us give a close look to the recitals under the various columns in Ex. P-3.
The first major head is "class, extent and value of inam". The said
major head is divided into 7 sub-heads. in col. 2 under the sub-head "General
class to which the inam belongs", the entry is "religious". In
col. 3 under the head "the survey number and the name of the field or
fields comprised in the grant-dry, wet or garden", the particulars of the
lands are given. This entry shows that except a small extent which is a garden
the rest is dry land. These details are more consistent with the grant being of
both the varams than being of mere melvaram. If it is of melvaram alone, the
quality of the field is quite irrelevant. Sub-heads 4, 5 and 6 show that the
extent is about 18 acres and 99 cents and the assessment is Rs. 24-14.-5. These
recitals leave the impression that the lane, was a dry land bearing a small
assessment of Rs. 24-14-5 and the, income therefrom could not have been
appreciable in those days. The second main head is "description, tenure
and documents in support of the inam". The entries under the various
columns under this head establish that the dry lands bearing an assessment of
Rs. 24-14-5 described in cols. 3. 4, 5 and 6 were granted as Devadayam to the
deity Pongali Amman permanently by Madurayar Paligar of Midura. The of the
grant is not known;
but even in the accounts of 1209 F. the name
of the deity was entered the grantee . The third major head is "name and
relationship of the original grantee and of subsequent and present heirs-length
of possession". In Col. 13 and 15 the, name of the deity alone is given.
In Col. 16 under the heading "name and age" and in Col. 17 under the
heading "place of residence" only the name of the deity is given.
Below the name of the deity the name of the
Pujari "Pujari Muttandi, age 45" is given. In Cols. 18 and 1 9 under
the heading "relation to orginal grantee or subsequent registered
holders" and "surviving heirs of the present incumbent" no entry
is made. Obviously no entries are made under these sub-heads, as the deity
cannot have relations.
The mention of Pujari Muttandi in the 357
context of other entries indicates that he was in charge of the temple. If his
name was mentioned because he had some interest in the land the other suitable
entries in regard to his relations would have been made under the relevant sub-
heads. Indeed it is not the case of the archakas that they have some interest
in the melvaram. If the document was concerned only with the melvaram interest,
strictly there was no place for the archaka in the document, for he had no
interest therein. His name was mentioned only as he was the person who was in
de facto management of the properties of the deity. In Col. 21 under the heading
"Deputy Collector's opinion and recommendation", the entry is
"To be confirmed permanently to the Pagoda so long as it is well kept up,
subject to the existing jodi of Rs. 3-1-7". Under Col. 22 the inam is
confirmed to the Pagoda. A reasonable interpretation of the recitals in this
document leads to the only conclusion that the Inam Commissioner was dealing
with the entire interest in the land, the particulars whereof were given
therein. There is no evidence that at the time the grant was made the archakas
or any others were kudivaramdars. But it is said that Ex. P-2, the inam
statement, filed by the then archakas would establish that what was -ranted was
only the melvaram. There, in Col. 2 under the head "Name of the inamdar
entered in dowle and names of the present enjoyer" the following entry is
Pongaliamman poosari Kuppaiyandi Muthuveeran
as per paimash entry. For fields Nos. 595 and 597 no poosari's name is
mentioned. Present (enjoyer) Pongaliamman poosari Muthandi." It is said
that pujari is shown as the enjoyer and, therefore, the deity has no interest
in the enjoyment of the land. The deity was obviously represented by the pujari
who was the de facto trustee. He was in possession of the property in his
capacity as the de facto trustee. In those circumstances if the pujari of the
temple is described as an enjoyer, it can only mean that he was in possession
of the land on behalf of the temple. Whatever ambiguity there might be in the
said recital it is dispelled by the entry in Col. 12 under the head
"Particulars of present enjoyment", namely 358 "By directly
cultivating this land selling the produce derived therefrom and applying the
sale proceed to the service of the deity. and my agnates have been performing
pooja and enjoying the said land according to the conditions of the
grant". This entry is couched in clear and unambiguous terms. It describes
the nature of the enjoyment of the land by the archaka; it clearly says that he
was cultivating the land, selling the produce and from the sale proceeds he was
doing the services to the deity in accordance with the terms of the grant. If
the deity was entitled only to the melvaram, this recital is inconsistent with
it. The recital indicates that the entire land was the subject-matter of the grant
in favour of the deity and that the produce from that land was utilized for the
services to the deity. Strong reliance is placed upon the entry in col.
13 under the head "Income derived from
the manibam; whether sarvadambla or jodigai, if jodigai, how much". The
entry is, "Income Rs. 24-14-5; Jodigai Rs. 3-1-7." Basing upon the
said entries the argument is that Ex. P-3 shows that the assessment on the land
was Rs. 24-14-5 and Ex. P-2 indicates that the same amount was the income
derived from the inam and, therefore, what was granted in inam could have been
only the assessment i.e., Rs. 24-14-5. This argument is farfetched and based on
a slender foundation. One of the main objects of the inam enquiry was to
ascertain whether the alienated lands were free of tax or not. The archaka who
was in possession of the land on behalf of the deity had to give information as
regards the tax payable in respect of the land in his possession. In that
context the expression "income derived from the manibam" can only
mean the assessment fixed on the land. After stating that full assessment was
only Rs. 24-14-5 the archaka stated that he was not paying the entire amount,
but was paying only the jodigai of Rs. 3-1-7. So understood the said recitals
fit into the scheme of other recitals in the said statement and those found in
Ex. P-3. A similar argument was advanced before this Court in Buddu
Satyanarayan's case(1) and was rejected. Das, J., observed at p. 1006 thus:
(1)  S.C.R 1001 359 "Apart from
these points of distinction the decision relied on by the learned Attorney-
General appears to us to be of doubtful authority. As will appear from the
passages quoted above, the decision rested mainly, if not entirely, on the fact
that the amount of assessment and the amount of income were the same and the
conclusion was drawn that the Inam grant comprised only of the revenue
assessment, i.e., of melvaram rights. We are unable to follow the
reasoning." We, therefore, hold that, from the recitals in the said two
documents, what was granted to the deity was of both the varams.
Learned counsel for the archakas relied upon
the long possession and enjoyment of the suit lands by the archakas and their
ancestors in support of their contention that the melvaram alone could have
been granted to the deity. Long enjoyment is also consistent with an
arrangement that might have been entered into between the grantor and the then
functioning archaka or archakas having regard to the conditions prevailing
then. The lands granted were com- paratively of small extent and they were dry
lands. In those days the income from the said lands must have been very
insignificant. There was no trustee for the temple.
In those circumstances it is, more likely
that the grantor would have put the land in the possession of the archaka so
that he might, from and out of the produce from the land, maintain the temple,
perform the puja and meet the expenditure connected with the puja and also pay
himself the remuneration for his services to the temple. That was a convenient
arrangement which was adopted in many of the small temples in that part of the
country. This practice was recorded with clarity by the Madras High Court in
Narayanamurthi v. Achaya Sastrulu(1). In dealing with a similar argument the
learned Judge observed:
The evidence of user and enjoyment, however
long uninterrupted and unquestioned, would be evidence of the grant only in the
absence of (1) A.I.R  Mad.411,412-413- 360 any reliable or cogent
evidence with regard to the terms of the grant itself or in the case of any
ambiguity in the grant. It seems to be clear that almost very recently the suit
lands yielded only just what was sufficient for nitya naivedyam or the daily
worship. No doubt in such a state of things not only the persons who established
the temples and made the endowments but succeeding generations of worshippers
would have allowed the archakas to cultivate the lands and take the income
performing the puja as it was obviously the most convenient mode of arranging
for the worship of the deities and the payment of remuneration of the archaka
service." "But when the income accruing from the lands came to be
considerable and the archakas, by reason of old habits and following their
fore- fathers, claimed the lands and surplus profits therefrom to be their own,
it was only natural that the worshippers should take steps to secure the
surplus income for the institutions." These observations are very apposite
and they clearly describe the circumstances under which the archakas of the temples
were allowed to be in possession of the temple lands. If that was the situation
under which the archakas came into possession of the lands, they were certainly
in the position of de facto trustees and they could not by mortgaging or
otherwise alienating the properties claim any rights in derogation of the title
of the deity. Indeed the documents on which the learned counsel relied contain
clear and unambiguous admission on the part of the archakas that the land
itself was the property of the deity. Exs. P-12, P-13, P-14 and P-15 are copies
of mortgages executed by the archakas. Under these documents the land in their
possession was mortgaged and it was described as paditharam Manyam. They also
disclosed hat the paditharam paddy directed to be paid to the temple was more
than the kist payable thereon to the Government. In the prior proceedings i.e.,
applications preferred by the 361 archakas for declaring the temples as
excepted ones, there was no claim that the melvaram alone was granted to the
deity. In other proceedings the archakas claimed that the lands were service
inams, but they did not come forward with the present plea that melvaram only
was granted to the deity. Further, pattas for the suit lands were transferred
without any objection of the archakas in the name of the deities in 1939 and
the archakas also paid contribution to the Madras Hindu Religious Endowments
Board on tile basis that both the varams belonged to the deity. The conduct of
the archakas, therefore, is consistent with the recitals in the inam register,
namely, that what was granted to the deity was the land i.e., both the varams,
and that they had been put in possession and enjoyment of the said land in
their capacity as archakas and de facto trustees.
Learned counsel for the appellants relied
upon an order made by A.R.C. Westlake, Collector of Coimbatore, on April 14,
1941, wherein he held that only melvaram was granted to the deity. That order
came to be made under the following circumstances. The trustees appointed by
the Coimbatore District Temple Committee filed an application before the
Revenue Division Officer under s. 44-B11(a) of the Madras Hindu Religious
Endowments (Amendment) Act, 1934, for a declaration that the alienations of
portions of inam land attached to the temple were null and void and for
resumption and regrant of the same to the deity. One of the issues in the
application was whether the inam comprised melvaram or both melvaram and
Kudivaram. The Revenue -Division Officer held that the inam comprised both the
varams. On appeal, the Collector came to the contrary conclusion. But a perusal
of the order shows that his conclusion was based upon pure surmises. The
Collector did not refer to any document or evidence for his conclusion. The
trustees filed a suit in the Court of the Subordinate Judge, Coimbatore, for a
declaration that the inam grant in favour of the plaint temple comprised both
the varams The learned Subordinate Judge held that s. 44-B of the Act had no
application as the grant was to the deity and was not a service inam. The
result of this litigation was that there was no final decision on the 362
question whether the grant was of both the varams or only of the melvaram.
These proceedings cannot, therefore, be of any evidentiary value in this case.
On a consideration of the entire evidence we agree with the conclusion arrived
at by the High Court that the grant to the deity comprised both the varams in
the suit lands.
Now coming to the appeals relating to
chowleswara swami temple, the factual and legal position is exactly the same as
in the case of Pongaliamman temple Ex. P-2 is the statement made before the
Inam Commissioner by the then archaka and Ex. P-3 is the extract from the Inam
Under the relevant entries in the inam
register, survey numbers, extent, quality and the assessment of the subject-
matter of the grant are given. The land is described as Devadayam and is stated
to have been granted for the support of the pagoda of Chowleswaraswami. The
nature of the grant is described as permanent. The date of the grant is not
known. The grantor's name is given as Maduraiyar Paligar of Madura. The name of
the original grantee is given as Chowleswaraswami. The grant of the land
described earlier is confirmed permanently to the pagoda as long as it is well
kept subject to the existing jodi of Rs. 24-8-2. The only mention of archaka is
in col. 17 under the head "Particulars regarding present owner" and
the entry thereunder is "Chowleswaraswami, stanika Muttaiyan". The
other columns where the relationship of the present owner with the previous
owners is expected to be recorded are left blank for the obvious reason that
the said columns are irrelevant in the case of a deity. The archaka's name in
addition to the deity is mentioned as he was in possession of the land in his
capacity as de facto trustee. The deity must necessarily have to be represented
by somebody and that he can only be the stanika who was managing the temple and
its properties. The relevant entries in the inam register do not countenance any
contention that the melvaram interest only in the land was granted and that was
confirmed to the deity. If the melvaram was granted or confirmed, the recitals
would have been different. The corresponding inam statement is Ex. P-2. The
entries are practically similar to those found in Ex. P-2 relating to 363
Pongaliamman temple with some slight variations. Col. 2 makes a clear
distinction between ownership of the land and enjoyment. The owner is shown as
Chowleswaraswami and the "present" enjoyer is shown as
The nature of the enjoyment is described in
col. 2 thus:
"The said lands are leased out for varam
cultivation and I cultivate the same myself some times and the income (masul)
therefrom is enjoyed by me and co-sharers (Pangali) and used for Swami
Viniyogam." It is manifest from this recital that the land was the
subjectmatter of the grant and the income therefrom was derived either by
direct cultivation or by leasing out the same, and the said income was enjoyed
by the archaka and used for viniyogam. The point to be noted is that the
predecessorin-interest to the present archaka admitted that the produce from
the land was utilized for the services of the deity. The said admission is
inconsistent with the allegation that the grant was only of melvaram. The
entries in col. 13 are similar to those contained in the corresponding Ex. P-2
relating to Pongaliamman temple, and, for reasons already given, they do not
support the contention that the assessment of Rs. 74-1-5 was only granted to
A combined reading of these two documents
leads to the only conclusion that both the varams were granted to the deity.
Just as in the case of Pongaliamman temple so
in the case of Chowleswaraswami temple, the subsequent conduct of the archakas
belie their assertion that only melvaram interest in the land was granted to
the deity. Exs. D-1 of 1867, D- 2 of 1868, D-3 of 1870 and D-4 of 1883 are some
of the mortgages executed by the archakas ,of Chowleswaraswami temple. Exs.
D-5, D-6 and D-7 are sales. In all these documents the property is described as
Chowleswaraswami manyam. If really the kudivaram belonged to the archakas, they
would not have described the land they were alienating as Chowleswaraswami
manyam. The description of the property as that of the deity is consistent with
the title of kudivaram also being in the deity. Further, as in the other case,
the pattas were 364 transferred in the name of the deity in 1939, the contri-
butions were paid to the Hindu Religious Endowments, Board on the basis that
the entire interest in the lands belonged to the deity and that in other
proceedings the archakas's case was not that the grant to the deity was only of
the melvaram but the lands were service inam lands. Though the archakas dealt
with the properties by mortgaging or otherwise alienating them they never
denied the title of the deity. For the foregoing reasons we hold that even in
the case of Chowleswaraswami temple the original grant made to the deity
comprised both the varams.
In regard to Sri Varadaraja Perumal temple,
no appeal was filed by the archakas and they allowed the judgment of the High
Court in regard to the title to become final. Nothing, therefore, need be said
on the question of title of the land in respect of this temple.
Coming to the cross-appeals filed by the
trustees against that part of the decree of the High Court apportioning the
property of the deity between the deity and the archakas, the question raised
is whether the High Court, having held that the title to the suit property
vested in the deity, had jurisdiction to compel the trustees of the temples to
put the archakas in possession of specified extent of property towards their
remuneration. The High Court observed thus:
"On these findings, it is no doubt true
that the decree in favour of the plaintiffs for possession of the properties on
behalf of the deity has to be upheld subject to the consideration set forth
below." Then it proceeded to consider whether any allocation of land
should be made between the archakas and the trustees. After noticing the
relevant decisions on the subject, it observed thus:
.lm15 "These decisions are practically
uniform except for the decisions.......... (in) A. S. No. 2 3 7 of 1950(1)
and............ (in) Venkatadri v. Seshacharlu(2) and have upheld the
allocation (1) Brahnyya v. Rajeswarawami temple A.I.R. 1953 Mad. 580.
(2) I.L.R. 1948 Mad. 46.
365 of lands between the archakas and the
trustees, the proportion however varying with the extent of the lands and the
amount of the income. None of the Judges were of the opinion that the
arrangement should be a permanent and an unalterable one and it must naturally
be subject to revision or alteration according to the circumstances of the case
at the instance not only of the trustees but also at the instance of the
archakas, if it was found that the allocation was working to the detriment of
either the archakas or of the temple." It concluded:
"We think, therefore, in these cases,
the best arrangement would be to allocate half the lands in each of the suits
for the remuneration of the archakas, to be divided equally, having regard to
the wet and dry extents, and leave the remaining half to the trustees, who have
to meet the cost of the daily worship and accumulate the surplus in their hands
as it belongs to the deity." On principle, in our view, the conclusion
arrived at by the learned Judges of the High Court is unsupportable. The suits
were based on title and the relief asked for was the eviction of the archakas
from the suit property as they, according to the plaintiffs had no title to
remain in possession. The archakas raised the plea that the title of the ,deity
was confined only to melvaram in the plaint- schedule lands and that they had
title to the kudivaram.
Both the courts confirmed the title of the
deity to both the interests and negatived the title of the defendant. In the
circumstances the Court has no option but to deliver pos- session to the
plaintiffs who had established their title to the suit properties. In a suit
for framing a scheme for a temple a court may in an appropriate case put the
archaka in possession of a portion of the temple lands towards his remuneration
for services to the temple; but these are not suits for framing a scheme. That
apart, there is absolutely no material either in the pleadings or in the
evidence to 366 make any such apportionment, for the allotment of a parti-
cular share to the archaka would depend upon the total income from the lands,
the value of the articles required for the worship, the amount of reasonable
remuneration intended to be provided and other similar circumstances. An
allotment cannot possibly be made on the basis of allocations made in the
circumstances and facts peculiar to other cases. Indeed, this Court has already
expressed a clear opinion on this aspect of the case in Buddu Surya- narayana's
case(1). Therein, Das, J., said at p. 1008 thus:
In a proceeding for the framing of a scheme
relating to a temple it may be permissible to take into account the claims,
moral if not legal, of the Archakas and to make some pro- vision for protecting
their rights, but those considerations appear to us to be entirely out of place
in a suit for ejectment on proof of title." With respect we entirely agree
with the said observations.
It follows that the High Court went wrong in
making an allocation of the lands between the trustees and the archakas in a
suit for ejectment.
Learned counsel for the archakas made an
impassioned appeal that we should give a direction to the authorities concerned
to make an apportionment of the properties on the lines suggested by the High
Court, having regard to the long enjoyment of the temple lands by the archakas.
Long enjoyment of the temple lands by the archakas is not a peculiar feature of
this case. The authorities concerned have made suitable arrangements for
remuneration in the ,case of other temples and we have no doubt that they would
make a reasonable provision for the archakas in the present case also for their
remuneration in accordance with law.
In the result, Civil Appeals Nos. 648 and 650
of 1960 filed by the trustees are allowed but, in the circumstances, without
costs. Civil Appeal No. 649 of 1960 filed by the trustees is also allowed
without costs except as against the (1)  S.C.R. 1001 367 14th respondent.
The said appeal against the 14th respondent is withdrawn on the ground that his
interest as a mortgagee is not now subsisting and the said appeal against the
14th respondent is dismissed as withdrawn but, in the circumstances, without
costs. Civil Appeals Nos. 651 and 652 of 1960 filed by the archakas are
dismissed with costs.
One hearing tee.