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TMI Blog1968 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... 1947, this order was confirmed on appeal by the District Collector. The Revenue Divisional Officer and the District Collector held that the inams comprised both melwaram and kudiwaram rights in the land. The orders were passed on notice to the alienees. The alienees instituted a suit in the Court of the Subordinate Judge, Madurai under the proviso to s. 44-B(2)(d)(ii) asking for a decree declaring that the inam grants consisted of the melwaram only. The suit was withdrawn to the Court of the District Judge, Madurai and registered as O.S. No. 3 of 1954. They, instituted another suit in the Court of the Subordinate Judge, Madurai, asking for a decree declaring that the order of the Collector dated October 17, 1947 was a nullity. This suit was transferred to the Court of the District Judge and registered as O.S. No. 4 of 1954. The District Judge dismissed O.S. No. 3 of 1954. He decreed O.S. No. 4 of 1954 and declared that the order resuming the inam lands was illegal and a nullity. The plaintiffs filed an appeal registered as A.S. No. 746 of 1954 in the High Court of Madras from the decree in O.S. No. 3 of 1954. The High Court dismissed the appeal. The State of Madras filed an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise resumption of the inams on the ground of any alienation thereof made before 1934; (4) there was no alienation of the inams as contemplated by s. 44-B (2) (a) (i) and (5) the right of resumption of the inam lands was extinguished by adverse possession of the lands by the alienees for over 60 years. The Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) was passed on January 19, 1927. Section 44-B was inserted in the present Act by Madras Act XI of 1934 and was later amended by Madras Act V of 1944 and Madras Act, of 1946. This section corresponds to s. 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) which repealed Act II of 1927. The material provisions of s. 44-B are in these terms : 44-B. (1) Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the support or maintenance of a math or temple or for the performance of a charity or service connected therewith and made, confirmed or recognised by the British Government, shall be null and void. Explanation. Nothing contained in this sub-section shall affect or derogate from the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service of Sree Padarn Thangi (palanquin-bearers). The statement, Ex. B-4, shows- that in fasli 1272 corresponding to 1862-63, Veerabadra Mudali, Periasami Mudali, Andiappa Mudali were in enjoyment of the inam and rendering the service under the direction of the Paisaldars or the trustees of the temple. They made the following statement: For taking the deities in procession round the village during the festival in the temple of Tirumulanathaswami and Akilandeswari Amman in the village of Kovil Thenkarai the aforesaid land has been granted as inam. The paisaldars appointed our ancestors and got service from them. The aforesaid manyam was in their enjoyment. Afterwards the manyam was divided and during fasli 36, it was registered in the name of myself individual No. 1 and in the names of the fathers of individuals Nos. 2 and 3. They were rendering the service and enjoying manyam and in the same manner. We have been rendering the aforesaid service and enjoying the manyam. The entries in the inam fair register, Ex. B-5 show that the inam belonged to the category of Devadayam and was for the service, of Sree Padam Thangi which was being then rendered, that the original grant was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption of an inam falling within the purview of the section where the inam was alienated before the section came into force in 1934. Subsection (1) of s. 44-B renders null and void certain alienations of the inam. Sub-section (2) authorises resumption of the inam on certain grounds. Sub-section (2) is not dependent upon sub-sec. (1) and allows resumption even in cases where there has been no alienation of the inam. In the present case, we are not concerned with the retrospective operation of sub-see. (1) of s. 44-B, and we express no opinion on it. But there can be no-doubt that s. 44-B (2)(a)(i) allows a resumption of the inam where there has been an alienation of the inam either before or after 1934. Even apart from s. 44-B, any inam whatever its nature could be resumed for failure to perform the conditions of the grant. Subject to certain restrictions and safeguards, paragraph 2 of the Board's Standing Order No. 54 permitted resumption of religious and charitable inams on the ground that the land was alienated or otherwise lost to the institution or service to which it once belonged or on the ground that the terms of the grant were not observed. The object of s. 44-B was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lease. At no stage of the litigation either before the revenue authorities or in the plaint or before the District Judge or in the High Court did the plaintiffs contend that the alienation in their favour was not within the purview of S. 44-B (2) (a) (i). As a matter of fact, the case made in the plaint was that their predecessor-in- title had purchased the land from the inamdars. Such an alienation is clearly within the purview of S. 44- B(2)(a)(i). For the first time in this Court it is contended that the alienation was by way of a lease from year to year. It may be conceded that all lease do not come within the purview of S. 44-B(2)(a)(i). The km must be for a term exceed' - 5 years. A lease from year to year is not a lease for a term exceeding 5 years howsoever long the lessee might have continued in possession of the demised lands. But we think that the plaintiffs ought not to be allowed to raise at this late stage the novel contention that the lease was from year to year'. This contention is contrary to the case made by them in the plaint. Moreover, the materials on the record do not support the contention. The plaintiffs and their predecessor-in-title were in con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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