The Roman Catholic Mission v. State of Madras and Another

_Madras Hindu Religious Endawments_ _Act_ (2 _of_ 1927), _s._ _44-B-Vall._ _dlty._ ' _Melwara1n-Resumption_ _by_ _Gcrvermnent-Period_ _of limitation._ _lnam_ _fair_ _retister-V_ _alue_ _of_ The suit lands were granted as _inam_ for the perfonnance of puja in ·a Devasthanam. As they had been alienated, Revenue DiYisional Officer, acting under s. 44B of the Madras Hindu Religious Endowment> Act, 1926, resumed and regraoted them to the Devasthanam, holdinr that the _inam_ consisted of both _me/waram_ and _kudiwaram._ The appellantMission, \Vhich was in possession of the lands as alienee, filed su:ts for " declaration that the _inam_ coosisted only of the _Me/waram,_ that the grant was a personal _inam_ not liable to resumption under s. 44B and tllat the section itself was _ultTa vires_ the Provincial Legislature. The trial Court held that the _inam_ consisted of both _warams,_ but that it was a pers<)nal _inam_ outside the purview of s. 42B~ and therefore decided in favour of the Mission. On appeal, the High Court reversed bolh the findings and held that the section was _intra vires._ In appeals to this Court by the Mission and the Dernsthanam, , HELD : (i) A concatenation of the several po,vers of the Provincial Legislature undeu the Government of India Act, 1915, furnished adequate scope for comprehensive leg· slation on the subject of in ams connectCli "1ith religious and charitable endowments. Even if there was any doubt, the Governor-General in Council must ha\'e decided the question as per r. 4 of the Devolution Rules under the Government of India Act, 1915, and put an end to any controversy on the matter. The section and the amendment to it in 1946 would be sustained by s. 292 of the Government of lt:ldia Act, 1935, and tbP. power of the Provincial Legislature thereunder. Section 44B was thus fully within the competence of the Provincial Legislature and the same would be tme of the corresponding section, s. 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951, _vis-a-vis_ the Constitution. [297 C-B, HJ (ii) The _lnam_ Fair Register incorporated an official declaration which was the result of detailed inquiries. All evidence collected in respect of each _inam_ was carefully sifted and considered before any conclusion was reached or declared. In the absence of positive and proper evidence t.o the contrary, such declaration must possess supreme importance. The High Court reached, on the admissible evidence, the right conclusion that the _melwaram_ alone was the subject of the _inain_ and that the _inmn_ was always considered as remuneration for _archaka_ service of the Devasthanam. The finding of the trial Court that it was. a personal _irurm_ "".•• erroneous. [290 B; 294 D-E; 295 E, F] TIIE ROMAN CATHOLIC MISSION _v._ STATE OF MADRAS AND ANOTHER ; ; _January_ 14, 1966 [P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, ###### • c M. HIDAYATULLAH, V. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.] D _i_ - • E -", F G H 284 SUPREME COL'JtT REPORTS [1966) 3 S.C.R. _1Uunacha1am Cherty and_ _othtr_ \'. _Venlwlaclra/apatlrl,_ LR. 56 I.A. **A** 204, applied. (in) 32 & 33 Viet. c. 29 only validated the title deeds granted by the **lnam** Commission. It did not create any contract, and thcrefo1e like **any other grant which** **is** **resumable on breach** **of** **its** **conditions, this** _**inarn**_ ... -. **was** **resumable according** **to** **its** **terms** **and** **conditions.** **On** **aJienation,** **it** was liable to re;umption under s. 448; and ns the resumption by the Governmeot was of the _rne/waram_ only, and since there is no period of B limitation prescribed by any law, no question of adverse possession by the MiMion would arise. (298 E, F) _Boddapa//i Jagannadltam_ v. _Secretary_ _of State,_ l.L.R. 27 Mad. 16 and _Subranwn/am Chettiar_ v. _Secretary_ _of_ _St111e,_ 28 M.L.J. 392, applied. (iv) By the resumption and rcgrant what was done was only to restore to the Devasthanam what it had lost. Therefore, it was not a case of putting a deoonminational religio1l• inslitutionn at an advantage. [297 C F-0) CIVIL APPELLATE JUR!SD!C'f!0:-1 : Civil Appeals Nos. 389 of 1964 and 69 of 1965. Appeals from the judgment and orders, dated December 14, 1959 of the Madras High Court in A. S. Nos. 773 and 787 nnd Appeal No. 734 of 1954 respectively. S. _G. Ramchandra Iyer,_ _J._ _B. Dadachanji,_ _0._ C. _Mathur_ and _Ravinder Narain,_ for the appellant (in C. A. No. 389/64) and Respondent No. l (in C. A. No. 69/65). _Ran1:mradham Cherry_ and _A._ _V._ _Rangam,_ for the respondent No. l (in C. A. No. 389/64). _A._ _V._ _Viswanatha Sartri,_ and _R._ _Gopalakrislman,_ for the respondent No. 2 (in C. A. No. 389/64) and appellant (in C. A. No. 69/65). The Judgment of the Court was delivered by **Hidayatullah,** **J.** In village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu. The former is 28.90 acres and bears survey No. 45 (the old survey No. was 33 and the area 28. 75 acres). The extent of the area in _kanieas_ is 21-9. The other block is Survey No. 78, area 20.88 acres (the old Survey No. was JOO and the area 20.53 acres). The extent of the area in kanies is 17-10. These lands were originally situated in village Managiri and the lands were _manyam_ lands, that is to say, lands held at a low assessment or altogether free in consideration of services. It is now clear from the record and indeed it is admitted on all hands that they were the subject of an _i11am_ granted in ancient times by the Rulers and that they were held for the performance of _puja_ in Sri Meenakshi S1mdare"''arnl Devasthanam, Madurai. In 1948 the Revenue I> E F G **H** . . •• ####, ' ·-< ,;'· '+ B c D E F to his file and was registered as 0. S: 2 of 1954. The second suit was a mere general one. It also sought the declaration which was the subject of O.S. 1 of 1954 and it questioned both the right to resume the ]ands as well as the resumption which was ordered· R. c. MISSION _v._ MADRAS _(Hidayatullah,_ .'.) 285 A Divisional Officer, Madurai,' held, after enquiry, that the _inam_ consisted of both _melwaram_ and _kudiwaram_ and as ·the _inmrr_ 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 unde~ s. 44B(2) (d) of the Act for a declaration that the _inam_ consisted only of the _me/waram._ The suit was later withdrawn by the District Judge to his own file and it was registered as 0. S. I of 1954. The Mission also instituted another suit in the Court of the Subordinate Judge Madurai, which was also withdrawn by the District Judge· the Provincial Legislature. The Province of Madras (now the State of Madras) and Sri Meenakshi Sundareswaral Devasthanam, Madurai were made defendants. by the revenue courts. In that suit the Mission contended •hat the particular _inam_ was outside the scope of s. 44B of the Madras Act 2 of 1927 as it was a personal _inam_ and not liable to resumption under that section and that the section itself was _ultra vires_ The District Judge dismissed 0. S. No. 1 of 1954, holding that the _inam_ consisted of both the _warams._ In 0. S. 2 of 1954 the same finding was repeated and it was further held that the G order of resumption was invalid and without jurisdiction since the _inams_ in question were personal _inams_ and did not come within the purview of s. 44B. The District Judge granted a declara•ion to that effect and also issued an injunction against the Deva,thanam which had .not taken possession of the land till then. Against the decision in 0. S. 1 of 1954 the Mission appealed and H against the decision in 0. S. 2 of 1954 the Devasthanam and th~ State of Madras filed anneals. A. S. 734 of 1954 was filed bv the Roman Catholic Mission against the decision in 0. S. 1 of 1954 286 SUPREME COURT REPORTS (1966] 3 S.C.R. and A. S. 773 and 787 of 1954 were filed -in 0. S. 2 of 1954 by A the State of Madras and Sri Meenakshi Sundareswaral, etc. Dev~­ thanam, respectively. The High Court decided all the three appeals on December 14, 1959 pronouncing a separate judgment in A. S. 7 34 of 1954 and disposing of the other two appeals by a commoa •' judgment. The finding that both the _irarams_ were the subject of the _ifli11tl_ was reversed by the High Court and 0. S. l of 1954 was decreed. The finding that the _inams_ were personal and, therefore, not liable to be resumed was reversed and 0. S. 2 of 1954 was ordered to be dismissed except for the modification that the _inam_ was held to be of the _melwaram_ only, which was the sole decision in the <>!her suit. The lligh Court repelled all contentions about the _ultra_ _i·ires_ nature of s. 44B. The High Court certified both the appeals as fit for appeal to this Coon 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 0. 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 mpon<lent is the Roman Catholic Mission. This judgment will dispose of the two appeals. B c D 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 fonds originally belonged to certain Mahomedans as proprietors. It appears, however, (as we shall see presently) that the land F itself wa~ not subjected to any grant but that the _thurva,_ that is, the rent paid in money, alone was the subject of the grant. Althougfi the right in respect of the concession in _theerva_ was made out in the names of the _Bhattars_ who were the _Archakas_ of the Devasthanam, both the concession as well as the land were subjected to alienations. Even before May 12, 1861 half of Melapappa- G .pathu was purchased by one Krishnaswamy Chettiar, son of Andiappa Chettiar, and the othei- half was purcha~ed by him on May 1, 1861. Similarly, Krishnaswami Chettiar had purchased a half of Keelapappapathu from the original proprietors. On January 4, 1863 one half share in Melapappapathu was ~ur- H chased by one Chockalingam Pillai from Krishnaswamy Chettiar. He also purchased one half of Krishnaswamy Chettiar's part of l\i:elapappapathu, for the benefit of one Muthuramalingam _)._ . . , . .. R. c. MISSION _v._ MADRAS _(Hidayatullah,_ _!.)_ 287 A Pillai. In October 1864 Chockalingam granted a formal release in favour of Muthuramalingam. The other half of Keelapappapathu, which continued with the original proprietors was sold by them to Krishnaswamy Chettiar (less one _kani)_ on July 18, 1867. On June 25, 1870 Muthuramalingam Pillai executed a usufruc tuary mortgage of a part of the land released in his favour, to one V airavalingam Pillai son of Muthuramalingam Pillai. It is not clear whether he was his own son but it is not relevant to inquire. On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar. The mortgage of June 25, 1870 was paid off and Krishnaswamy redeemed the property on September 11, 1872. This left out from Krishnaswamy Chettiar's ownership one _Kani_ of land which the original proprietors still held. On June 17, 1872, Krishnaswamy Chettiar purchased that land and in this way he became owner of all the lands comprised in these two appeals. Krishnaswamy executed a release and sale deed in favour of Andiappa Chettiar of all the lands and it appears that Andiappa Chettiar was the beneficiary of the purchases and thus the real owner. B c D On October 20, 1894, the Roman Catholic Mission purchased for Rs. 1,500 and Rs. 6,500 the greater part of Malapappapathu. E The remaining portion of this block and the Keelapappapathu block was purchased by one Anthonimuthu and when he set up his own title the Mission sued him and obtained a decree in 0. S. 45 of 1895 from the Sub-Court, Madurai West. The Roman Catholic Mission has thus been in possession of both the blocks F from the last century. We shall now consider the contentions in the two appeals. The High Court and the Di~trict Judge have differed on two aspects of this case. Both the aspects are connected with the natnre of the _inam_ in dispute. The first is whether the _inam_ was of the _Melwaram_ alone or comprised both the _warams_ and the G 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 H 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 288 SUPR!!ME COURT REPORTS (1966] 3 S.C.R. these three points were mainly argued, along with a claim of A adverse possession which the Roman Catholic Mission had set up. We shall begin by considering the nature of the _inam-lirst_ from the point of view, whether it comprised both the _warams_ and then from the point of view whether it was a grant to the temple or a grant for an office to be remunerated by the use of land or a grant of land burdened with service. We shall next consider the B arguments on the basis of which s. 448 is said to be _ultra viri',f_ and void. Lastly, we shall consider the question of adverse possession. As there is no document recording the grant of _inam_ and its conditions, one has to tum to a number of documents from which the High Court and the court below have drawn opposite conclusions regarding what was included in the _inam._ There is, of course, no dispute that the _inam_ must have comprised the _melwaram_ at least. That it must have done in any event. Thus c the sole question is whether it comprised the _kudiwaram_ also. In 0 reaching the conclusion that both _warams_ were included, the District Judge took into consideration certified copies of certain lea~es from the record of an old case 0. S. No. 124 C'f 1944 of the Court of Subordinate Judge, Madurai. These documents are Exts. B-4, 5, 6 and A-68, 69 and 77. Ex. B-4 is a _karalnama_ (agreement) executed for the _fasli_ years 1348 and 1349 by which E the lessees undertook to hand over I /3 share of the produce as _melwaram_ and to retain 2/3 share as _kudiwaram_ from the lands leased out of Keelapappapathu. Ex. B-5 is another lease for cultivating the whole of Keelapappapathu _nanja_ (wet) lands. Ex. B-6 is a _muchi/ika_ in respect of _nanja lands_ in Keelapappapath11 by which lessee undertook to pay half produce as _melwaram_ and F to retain the other half as _kudiwaram._ These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding. If G we leave these documents out of consideration, the other documents do not show that the _inam_ comprised the _kudiwaram_ also. Ex. A-3 is an extract from the village account of Managiri village, Mandakulam Taluk relating to _inams._ It is for the years 18021803. The lands are sufficiently identified with the suit lands by the area. The lands were described as _Ste/ather inam Poruppa_ ff _manyam,_ conducted for Meenakshi Sunderashwaral temple. The _poruppu_ being a low or qoit rent according to the 5th Report F G .~ .. ' _1_ .., R. C. MISSION _v._ MADRAS _(Hidayatul!ilh,_ _!.)_ l:89' A p; 765 we get an indication as to what the _inam_ comprised. The account shows that from the total assessment of 96 Pons 0 fanoms and 15 thuddus, the poruppu was only 19 Pons 2 fanoms imd 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 cdti##### • vators owning cultivable lands. This has been so held for a long ., , the _poruppu_ amount payable is stated and it almost corresponds to the _poruppu_ earlier mentioned, and there is a further men1fon c of the service of the temple. The _pattas_ exhibits A-6 to A-~: of the years 1856, 1857 and 1860 also speak of _sournadayam mani-_ _bam_ _poruppu_ which is revenue payable in money at a concess'1on. The _inamdars_ did not themselves claim in the Inam enquiry nny-· thing more than the _melwaram_ rights and in Exts. A-10 and A· 11, which are the _lnam_ statements ( 1862) and the Inam Fair Register D dated September 25, 1863. the _Sta/athnr Pnruppu Manibam_ is again mentioned and the Inam were registered in the name; of Bhattars as the _Sthaniks_ of the temple . time. [See _Venkata Sastrulu_ v. _Sitharamadu,(')_ per Sadasiva Iyer, J. arid _Sethayya_ v. _Somayajulu.](_ _[2 ]_ _)_ In the remarks colu!llln, c E F G The only document in which a contrary note was struck was. the _othi-deed_ (mortgage) Ex. A-64 of 1876 by which Mutbu Meenakshi had mortgaged her _Melwaram_ interest in half of the _inam_ for 20 years in favour of Krishnaswamy Chettiar. Muthu Meenakshiammal was the wife of Vikramapandia Battar the· _sthaneekam_ of the Devasthanam. This concerned both Melapappapathu and Keelapappapathu and the moragagee undertook to pay the _poruppu._ In describing the property it was stated that the _m.elwaram_ and _kudiwaram_ rights were in the mortgagee's po1session. This probably represented the true state of affairs because· Krishnaswamy Chettiar was slowly acquiring through the years the lands as well as the _inam._ A similar statement was mad•: by Krishnaswamy Chettiar in Ex. A-42 but it does not advance the case further. It is obvious that Krishnaswamy Chettiar had already acquired not only the _melawaram_ out also the _kudiwaram._ Neither docuinent really showed that the _inam_ comprised the _k udi-_ _waram_ as well. There is no other evidence of the inclusio11 of _kudiwaram_ in the _inam_ and the dealings were with _melwaram·_ which alone the _inamdars_ claimed at the _lnam_ Enquiry. R Although the matter has been discussed carefully by the High Court, we have re-examined the material and set down here (!)I.LR. 38 Mad. 891. (2) I.LR. _52_ Mad~ 453, 463. (P.C.) :290 SUPREME COURT REPORTS ( 1966] 3 >.C.R. what we consider to be adequate reasons for holding that there is no proof that the _kudiwaram_ was the subject of the _inam._ All admissible matter points to the conclusion that the _m.elwaram_ .alone was the subject of the grant. The appellant in Civil Appeal No. 69 of 1965 took us through the two judgments and pressed upon us the view of the trial Judge. We have considered the two views and are of opinion that the I ligh Court has reached the right conclusion on the admissible evidence on record. Civil Appeal No. 69 of 1965 must thus fail and this finding by u' will ·be read in the other appeal also. We shall now consider whether the _inam_ was a per.;onal _inam_ <Jr for the service of the Devasthanam. The High Court has relied upon a decision of the Madras High Court in _Rasa Kondon_ v. _lanaki_ _Ammal.(')_ _lnams_ are of various kinds. Thev are classified on the basis of concession in land revenue, th;t i; to say, whether the whole of the land revenue is remitted or a part, or whether the land is held subject to a payment of money. Where the whole of the land revenuo is remitted the _inam_ is known by names such as _Sarva lnam, Sarva_ _ma11yam,_ _Sarva_ _d11mbala_ or _darobust inam._ When the right to the soil is not included in :he _inam_ it is known according to the share which was free such as _Ard/la manyam_ (half), _chaturbhaf;am_ ( l /4) etc. The third kind o! _inam_ comprised payment of a quit rent called the _poruppu._ The question is whether this _inam_ in which only a _poru11pu_ wns payable comprised the right to the soil. In _Venkata_ v. _Sltara-_ _madu(')_ it was held by the Privy Council that there was no presumption in law that an _inam_ grant, even if mack 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 _melll'aram._ 1t was thus an _iJJam_ where the land was held subject to payment of an amount as quit rent. It was granted to the _archaka•_ 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 the parent Act II of 1927 and further amended hy the Amendment Act X of 1946 reads : "44-B. (I) 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 (I) (1950} 2 M.l..J. 177. (2) I.l.R. 38 Mad. SJI A B ., c D E F •· G •• H R. c. MISSION _v._ MADRAS _(Hidayatullah,_ J:) 29 L performance of a charity or service connected therewith and made, confirmed or recognized by the British Government, shall be null and void .. _Explanation.-_ (2) (a) The Collector may, on liis own motion,. or on the application of the trustee of the math or temple or of the Assistant Commissioner or of the Board or of any person having interest in the math or temple who has obtained the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any part of any such _inam,_ on one or more of the following· grounds, namely :(i) that the holder of such _inam_ or part has made an exchange, gift, sale or mortgage of the same or any portion thereof or has granted a lease of the same or any portion thereof for a term exceeding five years, or (ii) that the holder of such _inam_ or part lias failed' to perform or make the necessary arrangements for performing, in accordance with the custom or usage of such math or temple, the charity or service for performing which the _inam_ had been made, confirmed or recognized by the British Government, or any part of the said charity or service, as the case may be, or (iii) that the math or temple has ceased to exist or the charity or service in question has in any way become impossible of performance. When passing an order under this clause, the Collector shall determine whether such _inam_ or the _inam·_ comprising such part, as the case may be, is a grant of both the _melvaram_ and the _kudivaram_ or only of the _melvaram._ ( f) Where any _inam_ or part of an _inam_ is resumed under this section, the Collector or the District Collector as the case may be, shall by order, re-grant such _inam_ or part( i) as an endowment to tlie math or temple con**cerned, or** ,,. ' A B c D E •• F G H 292 SUPREMI! COURT REPORTS [1966] J s.c.R. Sub-section (I) of s. 44-B was the subject of interpretation in _P._ _B. Bheemsena_ _Rao_ v. _Sirigiri Paddayella Reddi an4_ _.others._ ( [1 ] ) The question then was whether s. 44-B (I) covered a grant of land burdened with service as against a grant for an -0ffice to be remunerated by· the use of land but resumable when the senicc was not performed. In dealing 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 condi tions 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, however, made to deal wilh 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 available 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, when the service was not being performed. whether there was an alienation or not, the full as<cssment being d~manded, the personal portion was left to the grantee bu1 the com:es,ional portion was given to the charity concerned. After the enactment of s. 44-B the Board's Standing Order Ruk: 54 was amended and _inams_ for religious and charitable purposes were classified : _(_ i) _inams_ granted for the performance of a charity or service connected with a Hindu math or temple: and (ii) _inams_ not falling under c13ss ( i). The first two kinds were governed by the provisions of the Madras Hindu Religious Endowments Act and the second by the Board's Standing Orders Ruic 54. Taking this history into account it is pointed out that s. 44-B (I), in spite of the width of its language is only open to a restricted interpretation and includes in resumable _inams_ those in which tJ1e whole of the income or a very great pan is required for the service and not large personal _inams_ with (!) [1962] t S.C.R. 339. A R ' c ' D E G H .. - • .~. R. c. MISSION _v._ MADRAS _(Hidayatullah,_ _J.)_ ~93 a· small or slight service. On the other hand grant of land made to an office-holder to remunerate him for service is always resum able if he ceases to hold office or to perform service. The rival contentions in this case may now be considered. The Roman Catholic Mission submits that these are personal _inams_ and they do not come within s. 44-B. This submission was accepted by·the District Judge. According to him, the _inam_ was made to the ancestor of the persons named in the Inam Fair Register, subject to the obligation to perform service in the temple. The _inam_ is thus held not to be attached to any office, _archaks_ or other; nor is the income remuneration for that office. It is urged that such an _inam_ is alienable, and if the service continues, the alienee cannot be distributed and can enjoy the _inam._ The High Court accepted the contention of the Devasthanam that the _inam_ wa., !!ranted for the office of the _archakas_ and for service a.s such In other words the _inam_ is said to be attached to the office and thus incapable of alienation and if alienated liable to resumption. In deciding which it is, certain documents throw a flood of light. In Ex. A-3 to which we have already referred, this _inam_ is called _Devedayam inam_ and again as _stalethar inam porupott_ _manyam_ "conducted for Meenakshi Sundareshwaral Temple, _thaatie Devasthanam"._ The _inam_ is entered in the names of Bhattars. The word _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 _slhala 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._ ' A B c D E _-!_ /;. ' F ### . G H 294 SUPREME COURT REPORTS [1966] 3 S.C.R. Now in a series of cases, the Inam Enquiry has been held by the Judicial Committee to be a landmark. In _Arunachalam_ _Chetty and Orhers_ v. _Venkatacha/apathi Guruswamigal(')_ the utmost importance was attached to the Inam Fair Register, the preparation of which was described as a great act of State. Jn _Narayan Bhagwantrao Gosavi Ba/ajiwa/a_ v. _Gopa/ Vinayak_ _Gosavi(')_ this Court held, accepting the finding of the Inam Commission, in the absence of other evidence, that the grant was to a Devasthan and constituted a Dcvasthan Inam. Mr. Ramachandra Aiyer attempted to prove to us that the expression 'act of state' in the Privy Council judgment was a misuse of the term and cited some cases where the act of state has been discussed. We do not find it necessary to refer to them. The term act of state docs not always mean a sovereign act against an alien which is neither grounded in law nor does it pretend to be so. The term means more than that because it has many meanings. In _State_ _of_ _Saurashtra_ v. _Memon l/aji Ismail_ _llaji(')_ other meanings of this term arc given. Here it indicates an act in respect of which there was an official declaration. The Inam Fair Rcgbter incorporated an official declaration which was the result of detailed inquiries. All evidence collected in respect of each _inam_ was carefully sifted and considered before any conclusion was reached or declared. In the absence of positive and proper evidence to the contrary such declaration must possess supreme importance. It is significant that the Roman Catholic Mission in the plaint as it was originally filed had said that the office of the _archaka_ was remunerated by the income of lands in dispute and by the income from other sources. However, when the decision _sub_ _nom._ _P._ _V._ _Bheemsena Rao_ v. _Y el/a Reddi_ of the High Court of Madras was reported in ( 1954) I M.L.J. 384 it pleaded by an amendment that the _inam_ was a personal _inam._ As the High Court in the judgment under appeal points out, there was litigation between the Bhattars am! the Roman Catholic Mission and the evidence we have discussed, must have been known to the Mission when the original plaint was filed. The fact that their pica was that this was an _inam_ for remunerating the office of the _archakas_ represented a true reading of these documents. The Inam Fair Register speaks of the _inam_ as _Devadayam_ and reads it as permam:nt. If the _inam_ was to a Brahmin personally it would have been shown as _'Brahmadayam'_ and 'hereditary'. ·----(1) ~~!..R.~~ 46 I.A. 204. (2) [t96li! t S.C.R. 77J 13) [196f,J I S.C.R. 537, 543. A B c D E F G H t . _.r.,._ - 1 ~ ###### • I.. ~ ## .. ' . •• _, R. c. MISSION _v._ MADRAS _(Hldayatullah,_ _!.)_ 2 95 Finally in Ex. A-10, which is a statement of Muthumeenak-~hi· ammal who was in enjoyment of the _inam_ in 1863, it is stated: -'-... ###### . •1!' A \" . B , , • • . ###### . chandra Aiyar even attempted to question the correctness of this F case, which has been followed consistently. The finding of the learned District Judge, Madurai, that this was a personal inam to an individual was erroneous and the High Court was right in reversing it. Mr. Ramchandra Aiyer next contends that s. 44-B was void G when the legislature purported to enact it, and, therefore, no action could be taken under it. This argument is many faceted and often it is obscure. Shortly stated, the argument is this : 'The _inam_ was confirmed on September 25, 1863 under title deed !354 by the Inam Commissioner. The alienations of the rights, whatever they be, were before that date. Prior to the Inam ComH mission there was no prohibition and the .confirmation could not affect prior alienations. As the _inam_ deeds were validated by an " Particulars as to how the inam was obtained and the abstract of the deeds. (7) B Nenjakani 39 During the time of our predecessors the said Manibam was allotted by the . previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we c also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying D 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 remuneE ration for _archaka_ service of the temple and on its alienation it is liable to resumption under s. 44-B. Even before the incorporation of s. 44-B such an _inam_ could have been resumed by Government, under Standing Order of the Board of Revenue Rule 54(1) (see _Anjanayalu_ v. _Sri Venugopa/a Rice Mill Ltd.(')._ Mr. Ram· c D ~~(ll~~ ~~I.L.R. 45 Mad. 620 (F.B.) a~~ t 624. 10 Sup. CI/66-6 296 SUPllEMB COUllT J.EPOllTS (1966] 3 S.C.R. Act of the British Parliament (32 and 33 Viet. c. 29) the right to forfeit the _lnam_ concession or to resume it could be exercised by the Crown only as the _inam_ became a contract between the Secretary of State for India and the inam-holder. Section 44-B A is said to be void because it confiicted with this position and enabled the Revenue Officers to order resumption. The resumption or forfeiture itself was said to be ineffective without the order B either of the Governor General or Governor in exercise of his individual judgment and also because the right to resume the _inam_ was said to be extinguished by prescription. The resumption was characterised as a forfeiture and was said to be void under s. 299 of the Government of India Act, 193!! and Arts. 31 and 296 of the Constitution. Madras Hindu Religious and Charitable Endow- C ments Act (XIX of 1951) which by s. 35, reenacts s. 44-B was further said to be void as, it was said, it seeks to protect only Hindu religious institutions and not those belonging to other religions. The power of the provincial legislature to enact s. 44-B in 1934 or 1946 was also challenged under the Government of India Act D 1915 and the Government of India Act, 1935, respectively. D The District Judge did not consider any of these arguments except the last, because he decided the issue of resumption against the 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 ~. 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 Constitu tion in respect of both. We shall consider these arguments mainly from the same two standpoints. ........ - 1 . ...... ,... The powers of the Provincial legislatures under the Government of India Act, 1915 were determined under the Devolution Rules made bv the Governor General in Council under ss. 45-A and 129-A of the Government of India Act. By these rules a dassification of subjects was made for the purpose of distinguish ing the functions of the local governments and local lcgislatnres <>f Governors' provinces from the functions of the Governor E F G H , R. C. MISSION _v._ MADRAS _(Hidoyatu/&zh,_ _J.)_ 297 A General in Council and the Indian Legislature. The Devolution Rules set out in two lists the subjects so classified and any matter in the list of provincial subjects set out in Part II of Schedule I was excluded from any central subject. Under rule 4 of these rules, if any doubt arose as to whether a particular matter did or did not relate to a provincial subject, the Governor General in B Council was to decide whether the matter did or did not so relate and his decision was final. At this distance of time, it is somewhat inept for a Court, without a proper inquiry, to decide whether the powers of the Provincial legislature did or did not extend to the making of c s; 44-B. For aught we know, this identical question might have been raised and the decision of the Governor General in Council obtained. That would be end of the matter. No one seems to have challenged the section although numerous _inams_ were resumed under that section. However, considering the matter in principle we do not feel any doubt about the competence of. the D Provincial legislature. As the District Judge and the High Court have rightly pointed out, the powers of the Provincial legislatures extended over land tenures, land revenue administration and religious and charitable endowments. A concatenation of these several powers must obviously furnish adequate scope for undertaking the most comprehensive legislation on the subject of _inams_ E in general and _inams_ connected with religious and charitable endowments in particular. Section 44-B was thus fully within the competence of the Provincial legislature. The next question which was considered by the High Court was whether resuming and regranting the _inam_ to a Hindu temple, offended the Constitution. The High Court did not accept this submission. It is obvious that by the transfer of the _inam_ the temple was deprived of a benefit and the transferee had no right to hold that benefit. What was done was to restore to the temple what it had lost and this was not putting a denominational religious institution at an advantage. G Once we hold that the Provincial legislature had competence to enact the impugned section, it would follow that the section would be sustained by s. 292 of the Government of India Act, 1935. Indeed, the power of the Provincial legislature under the Act of 1935 was no whit less than that of the legislature which H 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 Endowments Act, 1951 vi.~ _a vis_ the Constitution. •· #### . G 2Q8 SUPREME COURT REPORTS (1966] 3 S.C.R. The theory that contracts between the Secretary of State for India and the inam-holders came into existence after the passing of 32 & 33 Viet. c. 29 and that this took the matter out of the powers conferred by the Devoluiion 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 arc not concerned with its provisions. A year later another Act was passed to amend the Act of 1858. B It provided that any deed, contract or other instrument for the purpose of disposal of real estate in India, vested in Her Majesty c under the Act of 1858 must be expressed to be executed as on behalf of the Secretary of State for India or by order of the Governor General in Council or the Governor of Fort Saint George or of Bombay in Council. Although this statute was there, the title deeds which were issued by the Inam Commissioner were not expressed to be executed by order of the Governor in D Council and purported to have been executed on beha:f of the Governor in Council instead of on behalf of the Secretary of State for India in Council. This created a doubt about the validity of the title created under them. By the enactment of 32 and 33 Viet. c. 29 the title deeds for _inam_ lands were validated. They were to be read and to have the same effect as if they were E executed by order of the Governor in Council and on behalf of the Secretary of State for India in Council. In this way the flaw in the numerous grants was removed without having to reissue fresh title deeds. c E This legislation did not create a contract. It only validated the old title deeds and no more. To read into the grants by which _irurms_ were created, a contract which was inviolable exc..-pt by resumption by the Crown is to read into the Acts of British Parliament something which is not there. Like any other grant which is resumable on breach of its conditions, these _inams_ were resumable according to their terms and conditions. There was nothing in the _inam_ title-deeds or the.se statute.s which inhibited the Provincial legislature from enacting s. 44-B under its undoubted powers or the Collector from resuming the _inam_ on breach of its conditions under the power granted by the section. The other arguments on the subject of the validity of s. 44-B need not detain us. They proceed on obliterating the difference between resumption of an _inam_ for breach of its terms and ~orfei­ turr: which is a kind of punishment annexed by law to some 11legal F G H ') . ' #### . .. R. c. MISSION _v._ MADRAS _(Hidayatul!ah, J.)_ 299 act or negligence, in the owner or possessor of land. We are not here concerned with forfeiture but with the resumption of a con cession granted by Government, which is occasioned by the alienation of the concession to a stranger. Any argument based OD forfeiture is entirely out of place. Similarly, the arguments based on _bona vacantia_ or deprivation of property sufficiently indicated by the i'eliance OD the articles of the constitution mentioned earlier by us cannot help, partly because they are irrelevant and mainly because no such arguments appear to have been advanced in the High Court. We accordingly reject the contention tha.t s. 44-B or the resumption under it were invalid. _..... ,_,. A B c There remains only the question of adverse possession. In _Boddapalli Jogannadham and anr._ v. _Secretary of State(')_ it was held that there is no period of limitation prescribed by any Jaw within which alone Government should exercise its prerogative of imposing assessment on land liable to be assessed with public revenue. This case was followed in _Subramaniam Chettiar_ v. - D _Secretai;•_ _of Stdte(')._ As the resumption was of the _melwaram_ only these rulings apply. Mr. Ramchandra Aiyer admitted that he had no authority to the contrary. This point has no force. This appeal (Civil Appeal 389 of 1964) must also fail. The two appeals will accordingly be dismissed with costs. E There will be a right to set off the costs. _Appeals_ dlsmis~d. (l) LL.R. 27 Mad. 16. (2) ?.8 M.L.J. 392. ~ , +