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TMI Blog1966 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am 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 subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reprot 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 Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Devadayam and reads it as permanent. If the inam was to a Brahmin personally it would have been shown as 'Brahmadayam' and 'hereditary'. 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. 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. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed, 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. 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 ..... 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