Paturi Venkata Narayana (Died) And Other v. Sunkara Lakshmaiya (Since Deceased) And Others.

1. The plaintiffs who were successful in the trial Court but lost the suit in the appellate Court are the appellants in the second appeal.

2. The suit was for an injunction restraining the defendants from, starting proceedings to dismiss from service the plaintiffs on the ground that they are not reciting 'swastivacha-kam' daily. The defendants are the trustees of Sri Rajagopalaswamivaru temple at Dhulipudi. The plaintiffs appellants hold an inam of the extent of 1'4 acres and 49 cents in the said village which was admittedly granted by a previous zamindar for reciting 'swastivachakam,' in the temple. On 6-10-1943 the trustees issued a notice requiring the plaintiffs to recite 'swastivachakam' daily and in default they threatened to dismiss them. The plaintiffs therefore instituted the present suit on 19-10-1943. Their case in short is that the grant of the inam was to them burdened with service, namely, the recital of 'swastivachakam' in the temple and was not a grant at the temple over which the trustees would have jurisdiction. In other words, they contend that they are not the servants of the temple as contended by the trustees and that therefore the trustees have no power or control over them either under the terms of the grant or under Section 43, Madras Hindu Religious Endowments Act.

3. The sanad granted originally by the zamindar could not be produced, but the plaintiffs were able to produce a certified copy of the inam statement and the extract from the inam register as well as a copy of the title deed relating to the inam in support of their contention. Besides these documents, the defendants relied upon tne entry in Ram's register and also certain 'dhumballas' to substantiate their contention that the grant was really by the then trustees of the temple from out of the properties, which were granted to the temple, in other words, that it was a subordinate grant by them to the plaintiffs and that therefore they had the right and also the duty to dismiss the plaintiffs if they did not render the service properly. The learned District Munsif on an examination of the crucial documents In the case arrived at the conclusion that the grant was one burdened with service personally to the plaintiffs and not a grant to the temple. He therefore held that the defendants had no jurisdiction to dismiss the plaintiffs or to treat them as their servants requiring them to perform the service in default of which they would dismiss them from service. There was also another issue between the parties which is also important and that covers the dispute between the parties, namely, whether the plaintiffs were bound to recite 'swastivachakam' in the temple as contended by the defendants, or whether they are bound only to recite the vedas on particular days according to usage obtaining in this temple. On this question the trial court did not express any opinion as in its view that was a question which has to be considered by the revenue authorities if and when the inam came to be resumed for breach of the conditions of the grant. The result was that the learned District Munsif granted a decree in favour of the plaintiffs. On appeal, his decision was reversed by the learned Subordinate Judge and his conclusion was that it was really a subordinate grant by the trustees of the temple to the plaintiffs and the plaintiffs were therefore servants of the temple. The trustees had the power, according to him, to treat the plaintiffs as their servants and to even dismiss them if necessary under Section 43 of the Endowments Act if not under the terms of the grant.

4. In their appeal by the plaintiffs the same question arises for consideration. No doubt, the question, on which the parties are at issue appears to be one of fact but it is based upon inference to be drawn from the documents which constitute the crucial evidence in the case and therefore it is open to us to determine the tenure on which these lands are held by the plaintiffs on a consideration of the crucial documents.

5. Before considering the documents, we might mention that there are a number of petitions filed on behaif of the respondents: C. M. P. No. 1603 of 1947 to admit fresh documents in evidence, C. M. P. No. 8011 of 1952 to dismiss the second appeal No. 1136 of 1946 as having proved infructuous, C. M. P. No. 9843 of 1951 by the appellant to set aside the abatement caused by the death of the second appellant and C. M. P. No. 8010 of 1952 to dismiss S. A. No. 1136 of 1946 with costs as having abated as a whole without bearing on the merits. So far as C. M. P. No. 9643 of 1951 is concerned it was already ordered by our learned brother Chandra Reddi J. on 24-4-1952 C. M. P. No. 8010 of 1952 prays that S. A. No. 1136 of 1946 should be dismissed as having abated. Two of the appellants are dead, but on that ground, it cannot be said that the appeal abates in its entirety as there are other appellants, who are interested in the subject-matter of the second appeal. That petition therefore cannot be granted and must be dismissed.

6. There remains C. M. P. No. 8011 of 1952, which is for dismissing the second appeal as having proved infructuous. That application is based upon the fact that pending the second appeal, the Government resumed the inam and regranted it to the deity. The judgment of the lower appellate Court was pronounced on 27-10-1945. The second appeal was presented in this Court on 9-8-1946 and on 7-5-1946 before the second appeal was presented, an application was made by the trustees under Section44(b), Madras Hindu Religious Endowments Act to the Deputy Collector, Tenali, to resume the inam on the ground that the service holders, that is the present appellants, were dismissed by the trustees acting under Section 43, Madras Hindu Religious Endowments Act and that as the order of dismissal became final, the inam should be resumed and regranted to the deity. This request was granted by the Deputy Collector, as, in his opinion until the judgment of the learned Subordinate Judge was set aside it was binding on him and he held that as the learned Subordinate Judge took the view that the grant was one in lieu of wages for services to be rendered to the pagoda and as the respondents before him defaulted in rendering service the grant should no longer continue to them and should be resumed. The Deputy Collector's attention was drawn to the fact that a second appeal was pending against the judgment of the learned Subordinate Judge for by the time he came to dispose of the petition the second appeal was filed and was even numbered. Instead of staying his hands without proceeding to dispose of the application, the Deputy Collector adopted the curious procedure of acting upon the subordinate Judge's judgment and resuming the inam treating the grant as one attached to an office constituting its emoluments. When the matter was taken in appeal to the District Collector, the District Collector confirmed that order and he also did not choose to wait till the disposal of the second appeal. The basis therefore of the two orders of the Deputy Collector in the first instance and of the Collector in appeal was solely the finding of the learned Subordinate Judge. Though the Deputy Collector stated in his order that even apart from the judgment of the learned Subordinate Judge he came to the same conclusion, there is nothing to indicate in his order, that he had ever applied his mind to any of the documents which were the subject-matter of consideration by the Courts below. His observation therefore that he had reached an independent conclusion has no meaning in the circumstances and the Collector curiously thought that the Deputy Collector came to an independent conclusion about the tenure of the inam. Had he examined the order of the Deputy Collector more carefully, he would have easily seen that the order does not even indicate that he had before him the evidence and that he had applied his mind to it and drew the necessary inference from those documents agreeing with the conclusions of the learned Subordinate Judge. These two orders therefore may be taken to have been solely based upon the finding of the learned Subordinate Judge. If the finding of the learned Subordinate Judge cannot be accepted in second appeal and we reach a different conclusion it follows that the orders of resumption made by the revenue authorities would automatically fall to the ground as the very basis of the orders will then be knocked out. C. M. P. No. 8011 of 1952 can be disposed of only by considering the merits in second appeal and not independently of it solely on the basis of the orders of the Deputy Collector and the Collector. If we agree with the learned Subordinate Judge the orders of resumption will be justified and the second appeal will anyhow be dismissed even without this petition. If, on the contrary we reach a different conclusion and agree with the District Munsif the petition must be dismissed as the orders of the Revenue authorities will automatically fall to the ground.

7. This leads us on the merits of the case and the principal question for consideration is the tenure on which the lands have been granted to the appellants by the zainindar. The inam statement is Ex. D-2 and was filed by the inam-dars at the time of the inam enquiry of 1360. This statement gives the extent of half kuchelu (column 8). The name of the original grantees according to column 4 were Subambhotulu and others who were the original sanad holders. The particulars of the present enjoyers are given in column 5. The conditions of the grant are stated in column 6; lor the purpose of reciting swasthi in the temple of Sri Swami Varu half kuchelu is stated to have been granted. Then it is stated in column 7 head of "Sanad Gudi Kattu etc.") there is the following entry. "As per the sanad the inclusive of Sri Swami Varu K 4 1/2 out of which to these 1/2 included as per mashat". The translation of the Court is not quite accurate. According to the sanad including what was granted to Sri Swami Varu, the total is 4 1/2 kuchelus. The extent granted to the inamdars from out of the gudi kattu according to the mashyat is half kuchelu dry. The sanad that is referred to in this context has reference necessarily to the sanad granted to the inamdars and when we turn to the inam fair register extract Ex, D-1 the date of the sanad is given as fasli 1191 corresponding to 1781-82. The sanad that was granted to the temple according to the Ram's register was in fasli 1179 corresponding to 1769. The sanad therefore referred to in the inam statement could have no reference to the sanad granted to the temple and it purports to state according to the sanad granted to the inamdars including the gudi kattu granted to the Swami Varu and to the inamdars the total extent is 4 1/2 kuchelus in which the extent granted to the inamdars namely 1/2 kuchelu is included. We emphasise this for the reason that even the learned District Munsif seems to have fallen into the error that there is only one sanad granted both for the inam granted in favour of the temple and the inam in favour of the plaintiff's ancestor. The sanad must be distinct as is evident from the fact that the one sanad namely to the temple was earlier in date as is borne out by the Ram's register, Ex. D-3 and the sanad to these inamdars was later as borne out by the register Ex. D-1. None of the parties filed the inam fair register relating to the temple and that would have shown whether the date of the sanad was as stated in the Ram's register. The extent is given in the inam statement as 14 acres and 70 cents of half kuchelu. The boundaries are also stated in column 10. This inam was confirmed as appears from the inam fair register, Ex. D-1 by the inam commissioner on 3-9-1860 and title deed 1125 was granted- The inam fair register extract shows that the grant was of 14 acres and 70 cents (column 5) for repeating the Vedas in the pagoda which was now being rendered (column. 8) by Manikya Rao Tirupati Rao in fasli 1191 (column 11) and the original grantee was Paturi Subham Bhotlu as per column 13. The grant according to these documents was undoubtedly to these persons and not to the temple. The object of the grant was for the recitation of vedas in the pagoda. In column 2 it is stated that the general nature to which the inam belongs is devastanam service. That is the classification adopted by the inam register. That does not mean it is a grant to an office and intended to serve as emoluments attached to that office. A copy of the title deed is also produced by the plaintiffs which is Ex. P-1. Of course it is in a torn condition. But it can be sufficiently gathered from it that the title deed was granted to Janakiramudu Venkatarayudu for the extent of 14 acres and odd situate in the village of (torn) in Repalli taluk. It of course bears the seal of the inam commissioner and it also must have contained the number of the title deed. That a title deed was granted is beyond dispute. Exhibit P-1 shows that it relates to the suit inam.

8. For the respondents stress was laid upon the entries in the Ram's register and on certain dumbalas, Ex. D-4 series. Ram's register must have been prepared by Collector Mr. Ram, who according to the Krishna District Manual was Collector in 1794 or 1796. This shows that the grant to the temple by Manikya Ham, the same grantor was in 1179 of an extent of 4 1/2 kuchelus. The number of persons in the family of the grantee is stated in column 24 as 50 and in column 25 it is stated that he has no means of procuring livelihood- The grantee is of course Rajagopalaswami Varu. The argument is that this extent of 4 1/2 kuchelus must have included that 1/2 kuchelu which was granted to the inamdars at a later date. But this argument overlooks the fact that there are two independent sanads at different dates with a long interval and there is nothing to indicate that the half kuchelu which was granted to the inamdars in fasli 1191 was identical or was included in the extent mentioned in column 15 of Ram's register. The grantor was the same. If the grantor had already parted with. 4 1/2 kuchelus it could not be assumed that he violated the terms of the grant and contrary to it made a grant of 1/2 kuchelu from and out of it to the 'swastivachakam'. The only way of reconciling these two entries is to assume that Manikya Rani must have granted to the temple 41/2 kuchelus and this 4 1/2 kuchelus did not however include the 1/2 kuchelu which was granted to the inamdars in fasli 1191. It may be that the extent mentioned in Ram's register was only a rough extent without measurement and much weight cannot therefore be attached to the entry therein. There is nothing, however, to indicate in any of these registers that the grant to the inamdars was by the trustees and not by the zamindar and what is more significant is that there is not the slightest indication that this half kuchelu was carved out from what was previously granted to the temple. The dumbalss, Ex. D-4 series do not throw much light and do not support the contention at the respondents.

The earliest of the dumbalas is Ex. D-4 for fasli 1180, that is the very next year after the date of the grant to the temple as shown by the Ram's register. A dumbala, it is common knowledge, is a permit which was usually granted by the Government of the country for the removal of the crop from the threshing floor. The permission was granted in order to show that the dues to the State were paid or in case it was not necessary to pay the dues that the person who raised the crop and the person who was entitled to share the crop can remove the crop. The dumbala is only important to show that on this inam nothing was levied by the Government of the State and the crop was from time to time permitted to be removed without making any payment. The dumbala of 1180 Ex. D-4 says that dumbala permit was granted for the produce in the Khandriga inam to Sri Swami Varu paricharakas (servants) kirthans bhagathars 'Swasthiyalunnu' (vachaka) Brahmins and others in the aforesaid village and they were permitted to harvest the produce and remove the same after getting it measured. Exhibit D-4(a) is a dumbala between which and Ex. D-4 there is an interval of nearly 53 years. This dumbala shows that the total was 4 1/2 kuchelus in which 1/2 kuchelu for 'swastivachaka' Brahmins was included, the other 4 kuchelus comprising the following: l kuchelu for Sri Swami Varu's 'Nitya Naivedyam'; 1/2 for kir-thana Bhavavathi, 1/2 for Jangam Rajalingam, 1 for musicians and 1 for dancing girls. The total is 4 1/2 kuchelus. This dumbala was issued 53 years later to the date of the grant in favour of the temple and after about 40 years to the date of the grant in favour of the inamdars. We do not know what happened in the interval to reduce the extent of the inam granted to the temple, if really the extent mentioned in the Ram's register is conclusive to 4 kuchelus. Exhibit D-4(b) is for fasli 1248 that is 1838 and contains similar recitals as Ex. D-4(a); so also Ex. D-4(c) for fasli 1252 so that none of these documents on which reliance was placed on behalf of the defendants establish their case that the grant was by the trustees of the temple from and out of the extent granted to it. All these documents taken together point to one and only one conclusion that there were two distinct grants one to the temple and one to the inamdars on two different dates and the extent granted also was different. How the extent granted and noted in the Ram's register came to be reduced by fasli 1233 for which Ex. D-4(a) was issued it is rather difficult to speculate at this distance of time but it is sufficient to point out that it was held under a different sanad.

9. What is the inference therefore to be drawn from these entries in the accounts? As pointed out by Venkatasubba Rao J. in -- 'Sami Ayyangar v. Venkatramana', AIR 1934 Mad 381 (A), grants of this description may be of three classes. The grant may be to an institution, such as a temple or a mutt; the grant may be to an office to serve as emoluments attached to that office or the grant may be burdened with service and which cannot be resumed so long as the grantee is ready and willing to render service. In the case of grant to the institutions, there is no difficulty because the trustees would have absolute control over such grants. In the case of grants to an office, so long as the office holder holds the office and renders service which he is bound to render he is entitled to enjoy the emoluments. He is treated as servant of the temple and the trustees would have jurisdiction over him and to dismiss him, if a proper case is made out for failure to render service, and appoint in his place another person who may be allowed to recover possession of the emoluments. In the third case the trustees of the temples have no power, or control over the inamdars as the inam is one burdened with service and the terms of the grant can be enforced only by the State which has confirmed the grant in the inam proceedings of 1860. Whether the grant in fact falls under one or the other of the categories mentioned above is a matter to be determined on a consideration of the evidence in the case, which usually consists of the Sanad if one is available, the inam statement, inam fair register extract and the title deed. From the entries in these registers it is a matter of inference to be drawn from them whether the grant is to an institution or to a person individually burdened with service or is attached to an office. As held by the learned Judge in that very case -- 'AIR 1934 Mad 381 (A),' in the present case also there is no difficulty in concluding that the grant is a grant to the inamdars personally with the condition attached that they should hold these lands so long as they continue to recite the vedas in the temple. It has been held in two cases in

-- 'Sarayya v. Vydyanatham', AIR 1915 Mad 626 (B); and -- 'Tangirala Chiranjivi v. Raja Manikya Rao', AIR 1915 Mad 505 (1) (C); that in cases of this description where one inam is granted to a person doing service in the temple and not one granted by the temple authorities, the latter cannot intervene to prevent alienation though the Government might. In both the cases it was found that the grant was not one made by the temple but Was by previous government. In the case of -- 'AIR 1915 Mad 505 (1) (C), the grant was like the present one made to certain vritikars for reciting the. Veda in the temple. The inam title deed was granted to the vritikars. It was treated as conditional grant by the zamindar and confirmed by the .British Government who alone had the right of resumption and the dharmakartas of the temple had no power to resume an inam of that description. This principle was considered by Varadachariar J. in

-- 'Venkatacharyulu v. Harihara Prasad', AIR 1935 Mad 964 (D), which related to Adhyapakann service. Of course, as the learned Judge pointed out, if the inamdar alienates away the properties it is not as if the trustees are helpless, They can sue for a declaration that the alienation does not bind the trust. In the case where the grant is attached to an office it has been held that it is open to the authorities concerned to make an appointment to the office so as to enable the appointee to recover the properties: vide the observations in--'Srinivasa Swami v. Ramanujachariar', 22 Mad 117 (E). If the inam is attached to a spiritual office, the office holder is entitled to hold it so long as he renders service and any alienation on the land made to a stranger would be void as against the rightful holder: see -- 'Pakkiam Pillai v. Seetharama Vadhyar', 14 Mad L. J. 134 (F).

10. It therefore follows from these principles applicable to various kinds oj inams, that is, inams granted to a temple, or granted to an office, or granted to a person burdened with service, that diffeient principles will apply to enforce the terms of the grant. In the case of an institution, it is the Government that are entitled to resume the grant) where the institution ceases to" exist or the income of the inam is not utilised for the support of the institution. That is why we find in the inam fair register relating to such grants that the grant should continue so long as the temple is kept up. In the case of a grant to an office if the office holder does not render the service, it is open to the controlling authority to remove him from office and appoint another, who would be entitled to recover possession of the property. Such a power is also conferred upon the trustee under Section 43, Hindu Religious Endowments Act. But the position is altogether different in the case of an inam burdened with service. Though the beneficial interest goes to the temple, the trustees of the temple can only enforce the terms of the grant by approaching the Government who alone are the proper authorities entitled to resume the grant. The principles on which such grants can be resumed are common knowledge, viz., that so long as the grantee is ready and willing to perform the service the grant cannot be resumed merely because the grantor or his representatives choose to dispense with the service and exercise their pleasure to determine the grant. It is more or less an irresumable grant provided of course the grantee is willing to render service. The position is totally different in the case of inams attached to an office. It is open to the authorities concerned to terminate the office and resume the grant. These are principles which have been well established by decisions and do not require citation of any authority. In the light of these principlesl it follows that the relationship between the trustees and the plaintiffs is not that of master and servant and that they have no control over these plaintiffs. If the plaintiffs do not render or refuse to render service, the trustees can appeal to the Government and ask them to resume the grant. They cannot themselves dismiss and then request the Government to terminate the grant. The plaintiffs are therefore entitled in our opinion to the injunction which was granted by the learned District Munsif.

11. The learned District Munsif as already pointed out did not express any opinion on issue (6), that is whether the grantees are bound to render 'swastivachakam' or are only bound to render such service according to the usage and custom of the temple. That question has not been tried. We think it is unnecessary to go into that question in this second appeal as between the trustees and the plaintiffs no question of terminating the grant and resuming it arises. The question might arise as and when the Government, if a proper case is made out, choose to terminate the grant on the ground that while it was the duty of the plaintiffs to render service daily they refused to do it but were only ready and willing to render service on specified days. In such an event it would be necessary to determine the terms of the grant according to the usage of the temple. It is unnecessary for us to express an opinion on this question.

12. For the foregoing reasons the decision of the learned Subordinate Judge is set aside and the second appeal is allowed with costs here and in the court below. C. M. P. No. 8011 of 1952 is dismissed. No costs.