Sridhar Suar & ANR Vs. Shri Jagan
Nath Temple & Ors [1976] INSC 122 (21 April 1976)
SINGH, JASWANT SINGH, JASWANT RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION: 1976 AIR 1860 1976 SCR 101 1976 SCC
(3) 485
ACT:
Transfer of Property Act, 1882-Sec. 105-Indian
Easement Act, 1882 Sec. 52-Distinction between lease and licence Lis
Pendens-Puri Shri Jagannath Temple (Administration) Act 1952-Sec. 2(d)-Meaning
of.
Hindu Law whether of a Hindu temple can grant
a valid permanent lease.
HEADNOTE:
The appellant's great grandfather was granted
a Sanad in respect of 2 rooms in the Jagannath temple by the Superintendent of
temple at the annual rent of Rs. 7/-. The Sanad provided that the grantee would
be entitled to enjoy the said 2 rooms from generation to generation and in case
a permanent structure was constructed thereon the rent would be enhanced to Rs.
14/- per year. After the death of great- grand-father of the appellant the grandfather
and thereafter the father of the appellant continued storing and selling dry 'Mahaprasad'
in the said property and continued to pay Rs. 14/- per year. The respondents
who have the management of Jagannath temple at present under the Puri Jagannath
Temple (Administration) Act, 1952, called upon the appellants' father to close
and to hand over the possession of the two rooms to the management on the
ground that the storage and sale of Mahaprasad in the Bihar Bedha of the temple
affected adversely the discipline and dignity of the temple. The appellant's
father was threatened with imposition of a penalty of Rs. 100/- per day in case
he did not vacate the premises in question. The appellant's father, therefore,
tiled the suit in the civil court which after his death has been continued by
the present appellant for permanent injunction restraining the respondents from
interfering with his right of storing and selling dry Mahaprasad in the suit
premises. According to the plaintiff the permanent lease was granted to him by
the Raja Dibyasingha and that since he was continuing to pay the rent regularly
he was entitled to continue in the suit premises from generation to generation.
The respondents contested the suit on the ground that it was beyond the
competence of Raja of Puri as Manager of the temple to grant a permanent lease
and that, therefore, the Sanad was ineffectual, invalid and inoperative, and
conferred no rights on the appellant and his ancestors which would bind the
present respondents.
Secondly, since the act of storing and
selling Mahaprasad at the suit premises constitute a breach of order and
discipline, the respondents under the above statute had right to ask the
appellant to vacate. Thirdly what were granted by the Sanad was licence and not
a lease.
The trial court dismissed the suit. However,
an appeal was allowed. The High Court accepted the second appeal and dismissed
the suit.
In an appeal by special leave it was
contended by the appellants :- (1) The suit property did not form part of the
temple.
(2) The Sanad granted a permanent lease of
the suit property and not merely a licence and therefore the appellant had an
indefeasible right of storing and selling Mahaprasad.
Dismissing the appeal, ^
HELD: (1) Section 2(d) of the Puri Sri
Jagannath Temple (Administration-Act, 1952, defines temple as including the
temple of Lord Jagannath of Puri. Other temples within its premises and all
other appurtenant and subordinate shrines, other sacred places and tanks and
any additions which may be 102 made there after commencement of the Act.
Records of right prepared under said Act also include the suit premises within
the meaning of temple. [104 H] (2) It is now well settled by a catena of
decisions of the Supreme Court that it is the creation of an interest in
immovable property that distinguishes a lease from a licence. The intention of
the parties is the real test for ascertaining the character of a document. At
one time it was thought that the test of exclusive possession was infallible
and if a person was given exclusive possession of a premises it would
conclusively establish that he was a lessee.
However, the result of the subsequent cases
is that although a person who is let into exclusive possession in prima facie
to be considered to be a tenant nevertheless he will not be held to be so if
the circumstances negative any intention to create a tenancy. To ascertain
whether a document creates a licence or lease the substance of the document
must be preferred to the form (entire English and Indian case Law reviewed).
[105 D-H, 106 A, D] (3) A careful perusal of the recital in the Sanad, which
does not revival the identity of the plot with precision would show that the
Sanad did not create any interest in the rooms in question in favour of the
grantee.
l he Sanad also did not confer the right of
exclusive possession of the premises. It is also evident from the right of
"Dakhale Khas" of the respondents in the suit property as also from
the proved facts that the Sarghara was not kept open by the temple authorities
from mid-night to 6 a.m. during which interval the plaintiff could in no case
occupy it nor could he have access to it. It proved that the employees of the
Raja of Puri used to clean the refuse etc., which got accumulated in the suit
premises. The Sanad, therefore, created a licence and not a lease. [107 E-H]
(4) Even if it is assumed that the Sanad created a lease it could not be valid
lease since the Mohant or manager of a Hindu temple is prohibited from grantee
a permanent lease except far legal necessity or benefit of the estate. Tn the
present case no such legal necessity or benefit of estate has been proved. [108
B-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 491 of 1975.
Appeal by Special Leave from the Judgment and
order dated the 24th June 1974 of the Orissa High Court in Second Appeal No. 8
of 471 Gobind Das and B. Parthasarthi, for the Appellant.
Santosh Chatterjee and G.S. Chatterjee, for
the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-This appeal by special leave which is directed against the
judgment and decree dated June 24, 1974, of the High Court of Orissa at Cuttack
reversing the judgment and decree dated September 23, 1970, of the first
appellate court which in turn reversed the judgement and decree dated April 10,
1970, of the Trial Court relates to the controversy regarding the appellants
right to store and sell dry 'Mahaprasad' in the suit premises consisting of two
pucca rooms standing on plot No. 167 in 'Bihar Bedha' (outer compound) of the
Hoary Holy public temple of Lord Jagannath Ji in Puri (here in after referred
to as 'the Temple'), which to use the language of the illuminating and
instructive preamble of Shri Jagannath Temple Act, 1954 (Orissa Act No. 11 of
1955) (hereinafter referred to as 'the Act', has ever since its inception been
an institution of unique national importance, in which millions of Hindu
devotees from regions far and 103 wide have reposed their faith and belief and
have regarded it as the epitome of their tradition and culture.
The facts giving rise to this appeal are: on
August 7, 1969, one Gopal Suar, since deceased, who was the father and
predecessor in interest of the present appellants describing himself as sevak
of the temple brought a Suit in the Court of the Munsiff, Puri, being suit No.
160 of 1969, for permanent injunction restraining, the respondents herein from
interfering with his right of storing and selling dry 'Mahaprasad' in the suit
premises.
The case of the original plaintiff was that
by means of 'Sanand' (Exhibit I) Raja Sri Dibyasingha Deb, the then
Superintendent of the Temple, granted to his great grandfather, Gangadhar Suar,
a permanent lease of the site on which the two suit rooms stood on an annual
rent of Rs.
7/- that it was provided in the 'Sanad' that
the grantee or lessee would be entitled to enjoy the site from generation to
generation and in case a permanent structure was constructed thereon, the rent
would be enhanced to Rs. 14/- per year; that as a result of the death of his
great grandfather, Gangadhar Suar, of his grandfather Bela Suar, and of his
father, Chakhi Suar, he had become the sole owner of the property; that a few
days after the commencement of the lease, two permanent pucca rooms for storing
and selling 'Mahaprasad' where constructed by his great grandfather, Gangadhar
Suar, who according to the stipulation contained in the aforesaid Sanad' became
liable to pay an annual rent of Rs. 14%- that since the commencement of the
lease, his ancestors had from generation to generation been using the suit
property as a store room and as a shop for selling dry 'Mahaprasad' in their
capacity as tenants of the Raja of Puri who was the Superintendent of the
Temple and the said right of his had been acknowledged and duly recorded in the
record of rights. that ever since the taking over of the management of the
Temple by tile Government, he had been paying annual rent as per terms of the
lease to the respondent who had accepted him as a tenant; that he had been
occupying and enjoying the suit property as before without any let or
hinderence either by the respondents or by their predecessor-in-interest; that
on August 1, 1969, his son intimated to him that respondent No. 2 had, by means
of notice dated July 31, 1969, called upon him to close the shop on pain of
daily fine of Rs. 100/-, as in the opinion of the respondent, he had been using
the land in inner bedha of` the Temple for storage and sale of 'Mahaprasad'
which adversely affected the discipline and dignity of the Temple;
that on being so informed, he personally
approached respondent No. 2 and represented to him that he was the permanent
lessee of the suit property and had acquired indefeasible right of storing and
selling 'Mahaprasad' thereon and the respondents could not interfere with that
right but his representation fell flat and respondent No. 2 threatened to close
his shop forcibly, to impose penalty on him, and to dismiss him from the
'seva'; that after sometime, respondent No. 2 served him within another notice
imposing on accumulated penalty of Rs. 4,600/- at the rate of Rs. 100/- per
diem and that there being no provision in the Act empowering the respondents to
do any of the aforesaid things, there action was arbitrary, illegal and without
jurisdiction.
104 The suit was vigorously contested by the
respondent.
While denying The grant of the open site to
the plaintiff's ancestor. Gangadhar Suar., as alleged, as also the construction
of two pucca rooms by the latter and the storage and sale thereon of
'Mahaprasad' by the plaintiffs' ancestors, the respondents averred inter alia
that the Raja of Puri being merely a Superintendent or a Manager of the Temple
it was beyond his competence to transfer a portion of the Temple permanently in
favour of any individual and the 'Sanand' set up by the plaintiff was as such
ineffectual, invalid and inoperative and did not confer any right , title or
interest on him or his ancestors and was not binding on the Respondents; that
according to the established custom and usage of. the Temple. 'Mahaprasad'
could not be stored and sold in a 'saraghara ' but was to be sold in Anand Bazar-the
place specifically set apart for the purpose, and that since the plaintiff had
been committing a breach of discipline and violating the orders of the
respondents be storing and selling 'Mahaprasad' in the 'Saraghara' standing on
plot No. 167 (which had been recorded in the record of rights as 'khas dakhali'
land of the respondents and was never intended for storage and sale of
'Mahaprasad') and was thus acting in a manner derogatory to the dignity of the
Temple, the respondents in whom the governance and administration of the Temple
and its endowments vested under section 5 of the Act were competent to take
action under sections 21 (A) and 30(A) of the Act.
After framing the necessary issues and
recording the evidence adduced by the parties, the Trial Court dismissed the
suit holding that as sections 15 and 30(A) of the Act cast statutory obligation
on the respondents to ensure maintenance of order and discipline and proper
hygienic conditions in the Temple and proper standard of cleanliness and purity
of the offerings made therein, they could not be restrained by a permanent
injunction from stopping the plaintiff to sell 'Mahaprasad' at a place other
than the one specified for the purpose. On appeal, however, the Sub-Judge
(Additional District Magistrate) Puri, decreed the suit.
Aggrieved by this decision, the respondents
preferred an appeal to the High Court which accepted the same and dismissed the
suit Counsel for the appellants has urged before us suit the suit property did
not form part of the Temple; that the transaction, evidenced by 'Sanands'
(Exhibits I & II) issued by the Raja of Puri as Superintendent of the
Temple in exercise of his right of superintendent and management of the Temple
amounted to a permanent lease of the suit property and not merely to a licence,
and that the appellants had an indefeasible right of storing and selling
Mahaprasad in the suit Saraonara. We shall deal with these contention seriatim
Regarding the first contention raised on behalf of the appellants we may observe
that according to section 2(d) of Act No. XIV of 1952 called the Puri Shri
Jagannath Temple (Administration) Act, 1952, 'Temple' means "the Temple of
Lord Jagannath of Puri, other temples within its premises, all their
appurtenant and subordinate shrines other sacred places and tanks and any
additions which may be made thereto after the commencement of the Act". It
may also he 105 mentioned that pursuant to section 3 of that Act a Special
officer with prescribed qualifications was appointed by the State Government
for preparation of the consolidated record of rights and duties of different
sevaks and pujaries and other persons connected with the seva, puja or
management of the Temple as also for preparation of a list of List immovable
properties endowed to L ord Jagannath Temple and the extent of the premises of
the Temple and what it comprises. In the report prepared by the said officer
which was published in the Orissa Gazette (Extraordinary) and is final and
entries whereof cannot be questioned except in the manner provided in section 5
of that Act, it is recorded that the Temple of Lord Jagannath occupies an area
of 10 acres and its premises include all appurtenance and subordinate shrines
and the outer and inner compounds and that the suit plot No. 167 lies in the
Baisi Pahacha' area in between the inner and outer compounds of the Temple and
that access to it is though the main gate lie. 'Singhadawara' (lion's gate) of
the Temple. It is, therefore, clear beyond any manner of doubt that the Suit
premises form part of the Temple. The first contention of counsel for the
appellants is, therefore, repelled.
For a proper appreciation of the second
contention, it is necessary to bear in mind the essential difference between a
lease and a licence. It is now well settled by a catena of decisions of this
Court that it is the creation of an interest in immovable property that
distinguishes a lease from a licence. Reference in this connection may be made
with advantage to the decision of this Court in Associated Hotels of India Ltd
v. R. N. Kapoor(1) where Subba Rao, J. (with whom Das, J. agreed observed as
follows:- "If a document gives only a right to use the property in a
Particular way or under certain terms while it remains in possession and
control of the owner thereof, it will be a licence. The legal possession,
therefore, continues to be With the owner of the property, but the licensee in
permitted to make use of the premises for a particular purpose. But for the
permission, his occupation would he unlawful. It does not create in his favour
any estate or interest in the property. There is, therefore, clear distinction
between the two con concepts. The dividing line is clear though sometimes it be
becomes very thin or even blurred. At one time it was thought that the test of
exclusive possession was infallible and if a person was given exclusive
possession of a premises, it would conclusively establish that he was a lessee.
But there was a change and the recent trend of judicial opinion is reflected in
Errington v. Errington 1952-1 All ER 149, wherein Lord Denning reviewing the
case law on the subject summarizes the result of his discussion thus at p. 155:
The result of all these cases is that,
although a person who is let into exclusive possession is, prima facie, to be
considered to be tenant, nevertheless he will not be held to be so (1)
A.I.R.1959.S.C.1262 106 if the circumstances negative any intention to create a
tenancy".
"The Court of Appeal again in Cobb v.
Lane 1952-I All ER 1199, considered the legal position and laid down that the
intention of the parties was the real test for ascertaining the character of a
document. At p. 1201, Somervell L.J., stated:
"....the solution that would seem to
have been found is, has one would expect, that it must depend on the intention
of the parties".
Denning L.J. said much to the same effect at
p. 1202:
'The question in all these cases is one of
intention: did the circumstances and the conduct of the parties show that all
that was intended was that the occupier should have personal privilege with no
interest in the land ?" The following propositions may, therefore, be
taken as will established: (1) To ascertain whether a document creates a
licence or lease, the substance of the document must be preferred to the forms;
(2) the real test is the intention of the parties-whether they intended to
create a lease or a licence; (3) if the document creates all interest in the
property, it is a lease; but, if it only permits another to make use of the
property, of which the legal possession continues with the owner, it is a
licence; and (4) if under the document. a party gets exclusive possession of
the property, 'perima facie' he is considered to be a tenant. But circumstances
may be established which negative the intention to create a lease".
Again in Quadrat Ullah v. Municipal Board,
Bareiliy(1) this Court observed:- "There is no simple litmus test to
distinguish a lease as defined in s. 105, Transfer of Property Act from a
licence as defined in s. 52, Easements Act, but the character of the
transaction turns on the operative intent of the parties. To put it pithily, if
an interest is immovable property; entitling the transferees to enjoyment, is
created, it is a lease; if permission to use land without right to exclusive possession
is alone granted, a licence is the legal result." Then again in Board of
revenue v. A. M.Ansari(2)this very Bench while approving the observations made
by Lord Shaw while delivering the judgement of the Board in Kauri T Timber
Company Limited v. The Commissioner of Taxes(3) held that in order that a (1)
[1974] 2 S. C. R. 530.
(2) [1976] 3 S. C. R. 661 (3) [1913] A. C.
771 (776).
107 agreement can be said to partake of the
character of lease, it is necessary that the grantee should have obtained an interest
m and possession of land. The following observations made therein are
apposite:- "A licence does not create an interest ill the property to
which it relates while a lease does. There is in other words transfer of a
right to enjoy the property in case of a lease. As to whether d particular
transaction creates a lease or a licence is always a question of intention of
the parties which is to be inferred from the circumstances of each case. For
the purpose of deciding whether a particular grant amounts to a lease or a
licence, it is essential, therefore, to look to the substance and essence of
the agreement and not lo its from." Bearing in mind the above
observations, let us now scrutinize the terms of Sanand (Exhibit-I) which reads
thus:- "Order hereby is issued to the Parichhas Karjees (Officers) of the
temple as follows:- one Gangadhara Suar of Kundhaibenta Sahi has filed an
application before the Raja for opening a 'Sera Ghara' (store Room of
Mahaprasad) at the top step of twenty two steps adjoining the inner compound of
the temple and the Eastern Gate Way having space of 10 cubits of length towards
south and width of 10 cubits.
It is ordered that he is permitted to open
the said store room with hereditary right on payment of` one gold Mohara as Salami
and rupees seven as annual rent.
If he at any time constructs a pucca house,
he shall pay rupees fourteen as annual rent." A careful'. persual of the
recitals in the Sanand (which does not reveal the identity of the plot with
precision) would show that the Sanand did not create any interest in the size
in question in favour of the plaintiff's great grandfather. It merely permitted
him to open a Saraghara which meant a room for storing articles for the sole
purpose of preparing Bhog for the three presiding deities. The Sanand did not
also confer the right of exclusive possession of the suit property on the
grantee.
This is evident from the right of 'dakhale
khas' of the respondents in the suit property as also from the proved fact that
'Saraghara' was not kept open by the Temple authorities from midnight to 6.00
A.M. during which interval, the plaintiff could in no case occupy it nor could
he have access to it. lt has also been found to have been established from the
plaintiff's evidence itself that the employees of the Raja of Puri used to
clean the refuse etc.
which got accumulated before the suit
'Saraghara'. Thus none of the elements of lease can be said to be present in
the instant case. In M N Chubwala v. Eide Hussain Sahib(1) this Court rejected
the claim of holders of certain stalls in a market that they were lessees and
not (1) A. I. R. 1965 S. C. 610.
108 licences there of the ground that they
had no right to us them after the closure of the market at night and the
responsibility of cleaning and disinfecting the stalls and closing the market
at night lay on the landlord and not on the stall holders.
No help can be derived by the appellants from
Exhibit- II which relates to a quarrel in 'Kotha Bhog Nities' and is not
relevant for the purpose with which we are concerned at the present stage.
Now assuming without holding that the Sanand
amounted to a lease, it cannot even then be held to be valid as permanent
alienation of the temple debutter property is prohibited. The position is
stated thus at page 489 of Mulla's Treatise on Principles of Hindu law (11th
Edition):- "The power of a shebait or a mohunt to alienate debenture
property is analogous to that of a manager for an infant heir as defined by the
Judicial Committee in Hunooman Pershad v. Mussamat Babooee 6 M.I.A. 393.
As held in that case, he has no power to
alienate debutter property expect in a case of need or for the benefit of the
estate. He is not entitled to sell the property for the purpose of investing ,
the price of it so as to bring in an income larger than that derived from the
property itself. Nor can he, except for legal necessity grant a permanent lease
of debutter property , though he may create proper derivative tenures and
estates conformable to usage." In the present case, the position of the
Raja of Puri who granted the Sanand (exhibit) was merely that of a shebait. He
could not have granted a permanent lease of the property in question to the
great grandfather of the plaintiff without necessity or without benefit to the
estat e which have not at all been made out hl this case Again the lease being
a permanent one for a fixed rent could not have been granted at all by the Raja
of Puri.
Reference in this connection may usefully be
made to page 931 of Mayne`s Treatise on Hindu Law (11th Edition), where the
position is stated as follows:- "It is beyond the powers of a manager to
grant a permanent lease at a fixed rent in the absence of unavoidable necessity
; for, to fix the rent, though adequate at the time in perpetuity. in lieu of
giving the endowment the benefit of an augmentation of a variable rent from
time to lime would be a breach of duty on the part of the manager. In
Palaniappa Chetty v. Streemath Deivasikamony (1917 ) 44 I.A. 147. Lord Atkinson
observed: "Three authorities have been cited which establish that it is a
breach of duty on the part or a shebait, unless constrained thereto by
unavoidable necessity, to grant a lease in perpetuity of debutter lands at a
fixed rent. however adequate that rent may be at the time of granting, reason
of the fact that, by this means, the debutter estate (1) 44 I. A 147 109 Is
deprived of the chance it would have, if the rent were variable of deriving
benefit from the enhancement in value in the future of the lands leased."
In Palaniappa Chetty & Anr. v. Deivasikamony Pandara(1) alluded to in the
above quoted passage, it was also held:- "A permanent lease of temple
lands at a fixed rent, or rent free for a premium, whether the lands are
agricultural lands or a building site, is valid only if made for a necessity of
the institution. It is not justified by a local custom, or by a practice of the
institution, to grant lands in that manner.
The phrase "benefit of the estate",
as used in the decisions with regard to the circumstances justifying an
alienation by the manager for an infant heir or by the trustee of a religious
endowment cannot be precisely defined but includes the preservation of the
estate from extinction, its defence against hostile litigation, its protection
from inundation, and similar circumstances." The present case is, in our
opinion, fully covered by the decision in Shibessouree Debia v. Mothooranath
Acharjo(2) where it was laid down a general rule that apart from unavoidable
necessity to create a new and fixed rent for all time, though adequate at the
time, in lieu of giving the endowment the benefit of an augmentation of a
variable rent from time to time would be a breach duty in the mohunt.
Thus viewed from any angle the 'Sanand' could
not be held to be any more than a licence and could not clothe the ancestors of
the plaintiff or the plaintiff with the status of a lessee.
This takes us to the last contention raised
before us by counsel for the appellants which is also devoid of substance. A
bare perusal of Exhibit-I is enough to show that it does not confer any right
of selling 'Mahaprasad' on the plaintiff or on his legal representatives.
Exhibit- II cannot also be usefully pressed into service by the appellants as
it relates to the sale of 'Rahani Bhog', and not of 'dry Mahaprasad'.
Thus all the contentions raised by counsel
for the appellants fail. For the foregoing reasons, we affirm the judgment of
the High Court and dismiss the appeal with costs. The appellants are, however,
as mutually agreed to between the parties, given one month's time to vacate the
premises. The cumulative penalty of Rs. 4,600/- to which the appellants have
been subjected also being excessive is reduced to Rs. 500%` P P. Appeal
dismissed.
(1) 441. A. 147 (2) 13 M. 1. A. 270.
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