Appeal No371 of 1956
Appeal from the Judgment and decree dated August 28 1953 of the Madras High Court in AS No 262 of 1949
A V Viswanatha Sastri R Sundaralingam and B K B Naidu for the appellant
Ganapathy Iyer V A Seyid Muhamad and T M Sen for the respondent No 1 1961
February 15
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal has been brought with a certificate issued by the Madras High Court and it arises out of a suit filed by the Managing Trustee of the appellant Sri Vedaraneeswararswamy Devasthanam against respondents 1 and 2 the Dominion of India and the Province of Madras respectively
In this suit the appellant claimed a declaration that the properties in suit belong to the appellant and asked for a direction against respondent 1 to put the appellant in possession of the same
A further direction was claimed against the said respondent calling upon it to account for and pay to the appellant mesne profits past and future and an alternative plea was also made by which the court was requested to determine the proper rent payable by the said respondent to the appellant
This claim has been rejected by the learned Subordinate Judge of Mayuram who tried the case and an appeal preferred by the appellant against the 89 trial court s decision has likewise failed
That is why the appellant has come to this Court
According to the appellant the suit properties which admeasure about 2400 acres are situated in the village of Agastiyampalli and the said village was granted in inam absolutely to the appellant by the Tanjore Rajas several centuries ago
From the time of the said grant the appellant was in exclusive possession and enjoyment of the said properties and its trustees and managers used to look after them and collect their profits for the use and benefit of the appellant
In 1806 an agreement was reached between the East India Company and the appellant under which the Company took possession of the appellant s properties in suit and in return promised to pay a sum of 1848 Pagodas annually
Out of this amount 1200 Pagodas represented the rent of the property
Pursuant to this agreement the Company took possession of the said property and was paying the agreed rent until 1858
In that year respondent 2 which succeeded the Company entered into possession of the property on the same terms and was making the annual payment of the said sum until 1937
Thereafter respondent 1 took over the salt revenue administration and as such the properties came into its possession
Respondent 1 has been paying the appellant the agreed amount from year to year
The appellant s case was that the true legal relationship between the parties was that of a lessor and lessee and that the lease itself was not of a permanent character but was one in the nature of annual or yearly lease which was continued from year to year
It is on this basis that the appellant made the two alternative claims specified above
Respondent 1 disputed this claim
 It denied that it held the properties under an annual or yearly lease
Its case was that when the suit lands were taken over by the Company compensation was fixed once for all the average income of the appellant from the manufacture of salt carried on by the appellant during the previous ten years having been taken as the basis for the purpose of calculating the said compensation
90 The properties came under the possession and control of the Company as a result of the proceedings taken under Regulation 1 of 1805 and the amount of Rs 4200 corresponding to 1848 Pagodas represents the compensation annually payable to the appellant
Respondent 1 made certain other pleas on the merits Of and urged a bar of limitation
On these pleadings the trial court framed ten issues
On the principal point of dispute between the parties it held that a reading of the relevant documents clearly showed that at the time when the Company took possession whatever the idea may then have been it must have been only to take over the properties permanently from the plaintiff Devasthanam and not to place themselves at the mercy of the trustees who might evict them at any time
According to the trial court the arrangement evidenced by the said documents was a permanent arrangement and that being so the appellant was not entitled to claim possession
The trial court also held that even if the relationship between the parties could be said to be that of a lessor and lessee the lease in question was a permanent lease subject only to the payment of a fixed rent of Rs 4200 per annum
On these findings the trial court dismissed the appellant s suit
The appellant then took its case before the Madras High Court
The High Court in substance agreed with the conclusions of the trial court
It considered the whole of the documentary evidence and came to the conclusion that the trial judge was right in holding that the documentary evidence showed that the arrangement by which the Company took possession of the appellant s properties was a permanent arrangement and that if it was held to be a lease it must be regarded as a permanent lease
According to the High Court the appellant s claim was also barred by limitation under article 134B of the Limitation Act
The High Court therefore confirmed the trial court s decree and dismissed the appeal preferred by the appellant
In the present appeal the principal question which has been raised before us by Mr Viswanatha Sastri 91 for the appellant is about the true nature of the relationship between the parties in respect of the properties in suit
He contends that the principal document exhibit A 1 on which reliance is placed by respondent 1 should be construed not as a permanent but as an annual lease and according to him the contrary view taken by the High Court is not supported by the tenor of the document and he also argues that in construing the said document the High Court has not borne in mind relevant principles of law governing the powers of the manager of a Hindu religious institution
Let us then briefly consider the relevant documents bearing on the point
The principal document is exhibit A 1
It purports to be a copy of the order passed by Mr Wallace on December 31 1806
It is addressed to the manager of the temple and it reads thus As the Government have taken charge of the pagoda salt pans and Sea Customs of Thopputhurai belonging to the above temple the sum of 1848 Pagodas shall be given to the temple annually in cash from the treasury being calculated on the average amount of 10 years  revenue besides which every possible assistance will be given to the temple
 It would be noticed that there is no duration specified in the document and prima facie it reads as if the Government had taken charge of the salt pans and Sea Customs permanently promising in return to pay to the temple the amount specified annually from year to year
In construing this document reference may be made to the previous correspondence that passed between the Collector and the Members of the Board of Revenue
It is not disputed that this correspondence can be considered for the purpose of construing the effect of the terms of exhibit A 1
On July 17 1806 a letter was addressed to the President and Members of the Board of Revenue in which the idea of acquiring this property was fully explained
In this letter in was stated that it would be better to grant to the temple commutation in land because that would be more certain and permanent than ready money payment
In computing the compensation which may be paid to 92 the temple the accounts of the pagoda were examined
It was found that the pagoda enjoyed revenue from the duties levied at ports at Thopputhurai and Kodikarai
Ten years  account showed that the average annual income in that behalf was
283 Pagodas
To this amount was added the amount of magama or charitable and litigious fees and the total worked out at an average of 532 Pagodas
From this was deducted 46 Pagodas which was the average of charges and expenses incurred in collecting the port duties
Thus the net annual average revenue was 486 Pagodas
Then an account was made of the income received by the temple from salt manufacture in the salt pans and it was ascertained that an average income in that behalf would be Star Pagodas 1362
That is how the whole annual income was found to be 1848 Pagodas
It would thus be seen that elaborate calculations were made to determine the amount of compensation which should be legitimately paid to the temple for depriving the temple of the possession of its properties in question
It was then considered whether the commutation for the amount should be in land or in money and as we have already pointed out a recommendation was made that payment of commutation in the form of land would be more certain and permanent
Thus the perusal of this document leaves no doubt that the property was intended to be acquired permanently for the purpose of manufacturing salt
It is on that basis that calculations were made and the amount of compensation determined
It appears that this proposal made by the Collector was not approved by the Government at Fort St George
In the letter written by the Secretary to the Government on October 28 1806 it was recommended that a payment should be made from the public treasury of a compensation for the loss which the pagoda had sustained by the introduction of salt monopoly in the Province of Tanjore not exceeding Star Pagodas 1848 per annum
The proposal thus made by the Government was accepted by the Board and its decision was communicated by the letter of November 17 1806
It is in the background of this correspondence 93 that we have to decide the effect of the terms contained in exhibit A 1
Thus considered there can be little doubt that though the property was not purchased outright it was taken charge of on a permanent basis for the purpose of manufacturing salt and compensation was determined on the same basis but made payable annually at the rate of 1848 Pagodas
There are however some other documents on which Mr Sastri relies
An extract from the inam register prepared on November 27 1862 exhibit A 18 has been pressed into service by the appellant
The main argument is that the relevant columns 16 to 20 which give particulars regarding the owners do not refer to the Company s right under this permanent arrangement
If the transaction was a permanent lease it is urged the lessee s rights would have been specified in the relevant columns
We are satisfied that this argument is not well founded
The main column deals with particulars regarding the owners
It also provides that if the inam was sub divided the name etc
of each sharer shall be entered in its columns
We are therefore not satisfied that the name of the permanent lessee was expected to be shown in this column
It is true that in determining the additional assessment on excess area payable by the temple the whole of the property is assumed to belong to the temple but that is not inconsistent with the temple continuing to be the lessor of the suit property at all
There is no doubt that if the Company had become the lessee of the said suit property by a document duly executed in that behalf entries made in the inam register cannot change or affect the character of the said right
Therefore in our opinion there is nothing in exhibit A 18 which militates against the case set up by respondent 1
Then Mr Sastri has relied on exhibit A 2 which is a title deed issued by the Inam Commissioner is favour of the temple
In this document the temple s title to the Devadayam or pagoda inam village of Agastiyampalli is recognised and specific mention has been made of the porambokes in the said village
It is stated that the whole of the property is held for the support 94 of the pagoda in the village of Vedaranyam
What we have said about the extract from the Inam Register applies with equal force to this document
It appears that from 1806 when the Company took possession of the property until 1941 the appellant has allowed the Company and its successors to be in quiet enjoyment of the property on receipt of an annual compensation paid from year to year
In 1941 the factory officer wrote to the trustee of the appellant to let him know the name or the names of the revenue villages to which the area covered by the
salt factory was originally attached prior to the acquisition and he enquired whether any compensation amount had been paid to the temple for the said acquisition
It is this letter which presumably started the appellant s present claim
Soon after receiving this letter the appellant wrote to the factory officer on April 8 1941 alleging that the property had been leased out to Government for the manufacture of salt for a monthly lease of Rs  350 or annually Rs 4200
The appellant thus set up a relationship of lessor and lessee between itself and respondent 1
Then the appellant moved the relevant authorities for appropriate relief on one ground or another
All its efforts to obtain possession of the property or even to have the amount of compensation enhanced failed and that led to the present dispute
The main argument which has been urged before us by Mr Sastri is that in construing exhibit A 1 we ought to bear in mind the limitations on the powers of the manager of the temple at the relevant time
Mr Sastri has relied on the fact that the manager of a temple could not have entered into a transaction of permanent lease unless there was a compelling necessity so to do
A permanent lease amounts to an alienation of the property and would have to be justified as such
An annual lease on the order hand can be executed by the manager in his capacity as the manager and the same is treated as an act of prudent management
That however is not true about a permanent lease and so in construing the document we should attribute to the manager the desire and intention to act within 95 his powers and not without them
In support of this argument Mr Sastri has referred us to the decisions of the Privy Council in Maharanee Shibessouree Debia vs Mothooranath Acharjo 1 Nainapillai Marakayar vs Ramanathan Chettiar 2 and Palaniappa Chetty vs Deivasikamony Pandara 3
The argument is that a fair and reasonable rule of construction would be to treat the document as executed in pursuance of the legitimate authority available to the manager of the temple and not as one which is executed in breach of the said authority
This position cannot be and is not disputed
In the application of this rule to the present case however two relevant facts cannot be ignored
The first important fact is that after the execution of the document more than a century has elapsed and so as observed by the Privy Council in Bawa Magniram Sitaram vs Kasturbai Manibhai 4 where the validity of a permanent lease granted by a shebait comes in question a long time in the present case nearly 100 years after the grant so that it is not possible to ascertain what were the circumstances in which it was made the Court should assume that the grant was made for necessity so as to be valid beyond the life of the grantor
In the present case more than a century has elapsed after the grant A as made and so the principle laid down by the Privy Council in that case can well be invoked by respondent 1
Besides it is common ground that under the relevant provisions of Regulation 1 of 1805 the manufacture and sale of salt was made subject to the immediate direction and control of the general agent appointed by the Government and the said manufacture and sale as well as transit export and import of salt whether by Bear or by land in the territory subject to the Presidency of Fort St George was prohibited except on account of Government or with their express sanction
It was also provided that all salt manufactured sold conveyed exported or imported directly 1 1869 13 Moo
IA 270 273 275 2 1923 L R 51 IA 83 97 98
3 1917 LR 44 IA 147155 156
4 1921 LR 49 IA 54
96 or indirectly otherwise than is provided for in the said Regulation shall be liable to seizure and confiscation
In other words part of this property belonging to the temple on which salt was being manufactured became absolutely useless for that purpose as the temple could no longer manufacture or permit the manufacture of salt
Faced with this situation it is not at all unlikely that the manager of the temple was compelled to enter into an arrangement with the Company and secure for the benefit of the temple a sub stantial permanent income accruing from year to year
It is common ground that the whole of the property was marshy and the only use to which it could be profitably put was for the manufacture of salt and that could no longer be done after Regulation 1 of 1805 was passed
That is why we think that even the test of the rule of construction on which Mr Sastri relies can be said to be satisfied in the present case
Circumstanced as he was the then manager or trustee had no option but to enter into an agreement like the one which was evidenced by exhibit A 1 thereby the manager provided for a recurring income to the temple and thus arranged for the upkeep of the temple the worship of the idol and discharge his duties as trustee
We have already seen how the previous correspondence which preceded the execution of the document unambiguously shows that the intention of the Company was to take possession of the property on a permanent footing and realising the limitations imposed by the Regulation the manager of the temple would also have wanted to give the property to the Company permanently and thereby create a permanent source of income for the temple
The subsequent conduct of the temple for over a century is consistent with the view that the temple knew that the property has been permanently given to the Company and is inconsistent with the present case that the lease is an annual lease
The payment and acceptance of the same uniform rent for over a century when so many political and other changes took place also support the same conclusion
The pleas set up by the appellant from stage 97 to stage in respect of its relationship with respondent in regard to the possession of this land have changed from time to time and that shows that the appellant was at paying to put forward a basis on which it could claim either possession or enhanced rent
The fact that respondent 1 is making large profits out of this property may explain the appellant s desire to get some more share in the said income but that cannot assist the appellant if it has parted with the property permanently as early as 1805 oil the terms and conditions specified in exhibit A 1
In our opinion the High Court was right in coming to the conclusion that the transaction evidenced by exhibit A 1 is a permanent lease and that respondent 1 is entitled to retain possession of the whole of the property on the terms and conditions specified in the said document
We must accordingly hold that the appellant s claim either for possession or for enhancement of rent has been properly rejected by the courts below
In the result the appeal fails but there will be no order as to costs
Appeal dismissed


Summary:
Under a scheme a Board of Trustees was appointed for administration of the Durga and a Masjid for the maintenance of which the Nawab of Carnatic had granted two villages in Inam
The income of the institution after disbursing the expenses had since long been shared by the descendants in four families in equal shares
The scheme also provided that the surplus income was to be distributed amongst the members of the said four families
One of the descendants died leaving him surviving his wife and two daughters who were obstructed in the performance of the Urs by the appellant s father
The said Muslim female members filed a suit for declaration that they were entitled to enjoy the properties and to manage the Durga perform the Urs festival and receive all incomes endowments and perquisites thereof once in every eight years according to their turn
The right to a share in the income was denied by the appellant contending that by custom in the family females were excluded from inheritance and that the claim was barred by the law of limitation and that in any event the suit for mere declaration was not maintainable
Held that a suit for declaration of rights with a consequential relief for injunction was not a suit for declaration simpliciter it was a suit for declaration with further relief and was not barred under article 120 Of the Indian Limitation Act merely because the contesting defendant did not recognise the right
The period of six years prescribed by article 120 is to be computed from the date when the right to sue accrued and there could be no right to sue until there was an accrual of the right asserted in the suit and its infringement or at least a clear and unequi vocal threat to infringe that right
If under the law a person was entitled to any legitimate right the mere denial of the right will not set the period of limitation running against the person entitled to such right
68 Held further that on the enactment of the Shariat Act 26 Of 1937 as amended by the  Madras Act r8 Of 1949 the Muslim Personal Law applies in all cases relating to the matters specified notwithstanding any customer usage to the contrary even at the stage of appeals if other conditions prescribed under the Act are fulfilled
Kunj Behari Prasadji Purshottam Prasadji vs Keshavld Hiralal
567 discussed
Syed Roshan Ali vs Mt Rehmat Bibi and Others AIR 1943 Lah
219 disapproved