JUDGMENT

This is an appeal by the 1st defendant. The plaintiff is the trustee of a temple and as such trustee he brought the suit for a declaration that the sale deed executed by the 2nd defendant in favour of the 1st defendant on 21st July 1924 is not valid and that the 1st defendant has no right to enjoy the alienated land. There can be no doubt that the land in question was granted to the 2nd defendant's ancestor for the performance of Adhyapakam service in the suit temple. It is unnecessary for my present purpose to decide whether it is in the strict sense a service grant or a grant burdened with the performance of the service and what degree of alienable interest the Inamdar has in the land; it was certainly not the personal or absolute property of the Inamdar. Under the terms of the grant and the provisions in the Inam register there can be no doubt that in the event of nonperformance of service the inam can be resumed.

Sometime after the 2nd defendant became a major, the Zamindar issued a notice to him in 1924 complaining that he has not been rendering service personally or through some one else and that he was living in a different village. On the 23rd April, 1924, the 2nd defendant sent a reply to the plaintiff, Ex. E, stating that he had made arrangements with some relation of his for performance of the service in the temple, that, as by reason of his sister's death that relationship had ceased, he would enquire whether the same man would continue to perform the service or not and that if necessary he would arrange with another man for the performance of the service, get a statement from him, attach it to his report and submit his report to him. The concluding portion of the letter promised that he would see the plaintiff in due course.

The next step is that the 2nd defendant sells away the property on the 21st July 1924 to the 1st defendant. The document in terms purports to be a sale of absolute property, makes no reference to its even being an inam and makes no open arrangement for the performance of the service by the transferee. It is however stated that some months after the execution of the document, the 2nd defendant took a letter Ex. III from the 1st defendant to protect himself against the possible consequences of any failure on the part of the 1st defendant to render service. It does not appear that as promised in Ex. E this letter was ever sent to the plaintiff or that the plaintiff was informed what arrangements the 2nd defendant had made for the performance of the service.

It may be useful to refer to two other documents produced on the plaintiff's side, apparently in answer to the extreme position taken up by the 1st defendant in his written statement that the land was not held subject to any obligation to render service at all. They are Exs. G and G-1. The 1st defendant therein undertakes to do service and states that he has been doing service. The 1st defendant's explanation now is that he wrote those letters as the plaintiff wanted them to be so written.

In the written statement the 1st defendant contended that all the allegations in the plaint either as to the liability to render service or even as to the fact of any service having been rendered were false. But he took care to add that “if necessary this defendant will render the said services or get them rendered at his costs.” He raised other pleas which it is unnecessary at present to set out. The 2nd defendant pleaded that the alienation was voidable only at the instance of the defendant's next heir in office and not at the instance of the plaintiff. He added that the 1st defendant had undertaken to perform service in the temple and that the 2nd defendant was not informed by the plaintiff that the 1st defendant was not rendering the service properly. He forgot that he never informed the plaintiff what arrangement he had made with the 1st defendant. The plaint alleged that the 1st defendant was not a fit person to be appointed for the Adhyapakam service. This allegation is denied by both the defendants. A question was also raised as to the right of the plaintiff to maintain this suit. It was said that he had no locus standi at all and alternatively it was contended that the suit was barred by reason of S. 73 of the Religious Endowments Act.

Curiously enough even at the stage of the issues it did not occur to the defendants to raise the point that they had been rendering service properly and there was accordingly no right to complain of the alienation as long as the service was being rendered either by the alienor or by the alienee. The omission is of course due to the fact that they thought fit to take up the position that it was their absolute property and not a service inam.

In this state of the pleading, the learned District Judge was perfectly justified in coming to the conclusion that the service was not being properly performed and any halting statements or offers made by the 1st defendant in the witness box as a matter of caution, to avoid any calamity, cannot certainly be laid hold of either as proof that service was being rendered or that he has been ready and willing to render service. The only question that I therefore propose to consider is whether the suit is maintainable.

The objection under S. 73 of the Religious Endowments Act has very little substance in it. The bar is only in respect of suits relating to the administration or management of the trust, i.e, proceedings against the trustee and not proceedings against the person who is wrongfully in possession of the property in which the trust is interested. The claim is for a declaration that the 1st defendant has no right under the sale deed taken by him. If anything, the case is more analogous to that in Hazarimull Chandukchand v. Vedachala Chettiar though the case there related to what was admittedly trust property and not mere service Inam.

The other objection is based upon a line of cases in this Court holding that where a service inam holder has alienated the service inam, a suit for possession thereof can be maintained only by the succeeding holder of the office and not by the trustee of the temple. So far as the right to possession is concerned, I have nothing to say against that line of cases. But they do not deal with the question whether any and what other remedy is open to the trustee to avoid the danger of loss to the temple, when by reason of the dissociation of the inam from the service or by failure to perform the service there is a danger of the service inam being resumed by the State. I am unable to agree with Mr. Satyanarayana Row that he has to sit quiet and leave it to the State to resume the inam and hope that the State may re-grant it to the temple. It is one thing to say that the trustee has no right to “possession” but quite a different thing to say that the trustee has not even such an interest in the property as will justify him in maintaining proceedings necessary to avert the possibility of resumption by the State, by insisting that the alienation shall be declared void and that the property shall be kept available for those who perform the service. As was only to be expected the Government, through the Tahsildar of Guntur, issued notices to the trustee in 1926 and 1927 (Ex. C series) drawing his attention to the fact of the non-performance of service by several of the service inam holders and directing the plaintiff to take necessary action in the matter. In Chidambaram Chetti v. Minammal it was observed that the trustee has a duty to see that emoluments attached to a temple office are not improperly severed from that office and that the interests of the temple are not prejudiced by the way in which they are dealt with. Though in that case the learned Judges were dealing with the question of the propriety of the trustee joining in the suit instituted by the new office holder the observation recognises the existence of an interest in the trustee in the service inam property and it is not right to treat him like any third party to a contract. That the case may not fall within the four corners of S. 42 of the Specific Relief Act is immaterial, because it is now well established that S. 42 is not exhaustive of the categories of declaratory suits maintainable under the law.

Mr. Satyanarayana Row next relied on Strinivasa Ayyangar v. Strinivasa Swami and Srinivasa Swami v. Ramanuja Chariar . They only decided that if the plaintiffs have themselves the power to appoint the head of the Mutt it was their duty to do so, leaving it to the new Matadhipathi to sue the person wrongfully in possession and they could not call upon the Court to appoint a new head in place of the wrongful Matadhipathi. They are not really analogus to the present case. It may be a question whether or not in particular cases, the trustee of the temple has got a power of dismissal of the service inam holders; but I see no reason to assume that the only course open to him is to dismiss a particular service inam-holder and appoint a successor, leaving it to him to sue for possession of the alienated properties. That may not necessarily avert the danger of resumption by the State.

My attention was drawn to the decision of Venkatasubba Row, J. in Subramania Oduvar v. Somasundram Pillai where the learned Judge reviews and classifies the authorities dealing with various kinds of service inams. In the view that I take of this case, it is not necessary for me to say under which particular category the inam in this case might fall. But, as already stated, one thing is certain, that it is not the absolute property of the inamdar. In these circumstances an alienation which is made without due provision for the performance of service either by the alienor or by the alienee and when in fact the services have not been duly performed either by the one or the other of them can certainly not be held good. On this short ground I confirm the declaration given by the Courts below that the suit alienation is not valid.

Whether some other arrangement cannot be made which will sufficiently safeguard the interests of the temple by way of due provision for the performance of service is not a matter that I have got to deal with in this case. Nor am I concerned with the rights of the 1st and 2nd defendants inter se. I will leave these matters to the good sense of the parties concerned. The Second Appeal fails and is dismissed with costs.

N. R. R.Appeal dismissed.