The Roman Catholic Mission Vs. State of
Madras & ANR [1966] INSC 10 (14 January 1966)
14/01/1966 HIDAYATULLAH, M.
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-BValidity.
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 Act1926, 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
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 Devasthanam. 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]
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 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 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 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 inamfirst 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 possession.
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 A68,
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 cultivating, 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 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 melwaramwhich 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 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 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 concerned, 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.
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 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 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 inamholder. 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 individual 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 Government 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 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.
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 titledeeds 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. 44B 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.
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