Appeals Nos 484 and 485 of 1965
Appeals by special leave from the judgment and decree dated December 14 1959 of the Madras High Court in Appeals Nos 808 and 746 of 1954
ST Desai P C Bhartari and J B Dadachanji for the appellants in both the appeals
AV Rangam for respondents Nos
I to 3 in CA No 484 of 1965
R Gopalakrishnan for respondents Nos
I to 3 In CA No485 of1965
B Dutta for respondents Nos 4 9 and II in CA No 484 of 1965 and respondents Nos
13 to 17 and 20 in CA No 485 of 1965
544 The Judgment of the Court was delivered by Bachawat J
In the village of Thenkarai in the Madurai District there is an ancient temple of Sri Thirumoolanathaswami
Inams were granted by Hindu kings for performance of services of watchman palanquin bearer background music player dancing girl musical instrument player mason blacksmith carpenter potter washerman connected with the temple
The inams were confirmed by the British Government
For over 80 years the inams were in the enjoyment of alienees from inamdars
By an order passed on April 10 1947 under section 44 B of the Madras Hindu Religious Endowments Act the Revenue Divisional Officer Usilampatti resumed the inam lands and regranted them to the temple
On October 17 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 section 44 B2dii 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The suit was withdrawn to the Court of the District Judge Madurai and registered as OS No 3 of 1954
They instituted another suit in the Court of the Sub ordinate 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 OS No 4 of 1954
The District Judge dismissed OS No 3 of 1954
He decreed OS 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 AS No 746 of 1954 in the High Court of Madras from the decree in OS No 3 of 1954
The High Court dismissed the appeal
The State of Madras filed an appeal registered as AS No 808 of 1954 from the decree in OS No 4 of 1954
The High Court allowed the appeal and dismissed the suit with respect to all the inams except the Dasi inam
Regarding the Dasi inam the High Court dismissed the appeal as the inam was enfranchised and could not be resumed
It is from the decree of the High Court dismissing the suits in respect of the other inams that the plaintiffs have filed these appeals after obtaining special leave
The two courts concurrently held that the inams comprised both the kudiwaram and the melwaram
The District Judge held that the right to resume an inam could not be extinguished by adverse possession and that in any event the claim of adverse possession was not established
The High Court held that assuming the right of resumption could be so extinguished it was not established that the plaintiffs and their predecessors in title were in pOS session of the inam lands adversely to the inamdars or the Gov 545 ernment
The District Judge held that the inams were personal inams burdened with services and the order of resumption was therefore illegal and a nullity
The High Court reversed this finding and held that the inams were for performance of services connected with the temple and were resumable under section 44 B The District Judge held that section 44 B was retrospective in operation
On this last point the High Court did not express any opinion
It may be noted that OS Nos 3 and 4 of 1954 were tried along with OS Nos
I and 2 of 1954 and disposed of by the District Judge by a common judgment
OS Nos 1 and 2 of 1954 related to inams granted for performance of puja in another temple
From the decrees passed in OS Nos 1 and 2 of 1954 there were appeals to the High Court and subsequently appeals to this Court
The judgment in those appeals is reported in Roman Catholic Mission vs State of Madras1
One of the points in all the four suits was whether section 44 B was ultra vires the powers of the legislature
This Court held that the Provincial Legislature was competent to enact section 44 B and the amendment to it
On behalf of the appellants MrS T Desai submitted that 1 the inam grants did not comprise the kudiwaram 2 the inams were personal inams burdened with services and were not resumable under section 44 B 3 Section 44 B 2 was not retrospective in operation and did not authorise 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 section 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 section 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 section 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 rights and obligations 1  546 of the landholder and tenant in respect of any land as de fined in the Madras Estates Land Act 1908
2a The Collector may on his 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 term exceeding five years or ii that the holder of such inam or part has 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 recognised 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 melwaram and the kudiwaram or only of the melwaram
fWhere any main or part of an inam is resumed under this section the Collector or the District Collector as the case may be shall by order regrant such inam or part ias on endowment to the math or temple concernedor iiin case of resumption on the ground that the math or temple has ceased to exist or that the charity or service in question has in any way become impossible of performance as an endowment to the Board for appropriation to such religious educational or charitable purposes not inconsistent with the objects of such math or temple as the Board may direct
 547 The inam title deeds the entries in the inam fair register prepared at the time of the confirmation of the inams by the Inams Commissioner in 1863 and the contemporaneous statement made by the inamdars are of the same pattern in respect of all the inams
It is sufficient to refer to Exs
B 4 B 5 and B 6 relating to the inam for the service of Sree Padarn Thangi palanquin bearers
The statement exhibit 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 exhibit 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 made to the temple before fasli 1212 corresponding to 18023 and that in 1863 the inam was being enjoyed by Verrabadra Mudali Periasami Mudali and Andiappa Mudali
The title deed acknowledged their title to Devadayan or pagoda service inam to 1147 acres of land held for the service of Sree Padam Thangi and confirmed the inam to them and their successors tax free to be held without interference so long as the conditions of the grant were duly fulfilled
Those documents show that the lands were being enjoyed by the inamdars and were granted as inams
The amount of the assessment or melwaram was very low and could not be an ade quate remuneration
for the services to be rendered
The plaintiffs claimed title to the lands under a grant from the inamdars on the footing that the inamdars were entitled to the kudiwaram and the melwaram
The conclusion is irresistible that the inam comprised both the warams
The inams were originally granted to the temple for the performance of services connected therewith
The trustees of the temple appointed persons to perform those services and placed the inams in their possession to be enjoyed by them as remuneration for the services to be rendered by them
The Inam Commission confirmed the grants of the inams in favour of the hereditary officeholders then rendering the services
Where there were several 548 holders of the office the inams were shown to be in their enjoyment in equal shares
It is quite clear that the inams were granted to the holders of hereditary offices as remuneration for services to be rendered by them in connection with the temple
There is a well recognised distinction between the grant of the land burdened with a condition of service and the grant of land as remuneration for an office see Forbes vs Noor Mahomed Tuquee1
Section 44 B does not apply to a personal inam burdened with a condition of service See P V Bheemsena Rao vs Siyrigiri Pedda Yella Reddi2
It applies to an inam granted to an office holder as remuneration for his services connected with a math or temple as also to an inam granted to the institution direc tly
The inams in the present case were not personal inams
They were inams granted to office holders as remuneration for services to be rendered by them and were within the purview of 44 B
The next question is whether section 44 B allows 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 section 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 section 44 B and we express no opinion on it
But there can be no doubt that section 44 B 2ai allows a resumption of the inam where there has been an alienation of the inam either before or after 1934
Even apart from section 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 section 44 B was to define and enlarge the grounds on which the inams could be resumed and to devise a proper procedure for the resumption
On general grounds of public policy the legislature has declared that the inam may be resumed on any of the three grounds mentioned therein
The first ground is that the holder of the inam has made an alienation
The words has made in sub section 2ai takes in all alienations past and future and not only future alienations or alienations made after the section came into force  If there has been any alienation at any time the first ground exists and the inam may be resumed under section 44 B
The words has failed in sub
section
2aii and the words has ceased and 1 1870 13 HIA438464
2  549 has become in sub
section
2aiii similarly authorise resumption of the inam if the other grounds exist though they may have arisen earlier
Section 44 B2 is in its direct operation prospective as it authorises only future resumption after it came into force
It is not properly called retrospective because a part of the requisites for its action is drawn from a time antecedent to its passing See Maxwell on Interpretation of Statutes 1 1 the p 21 1
The inams in the present case are resumable under section 44 B2ai though the alienations were made before 1934
Section 44 B2ai is attracted if the holder of the inam has made an exchange gift sale or mortgage of the inam or has granted a lease of it for a term exceeding five years
In the plaint in Suit OS No 4 of 1954 the plaintiffs claimed that one Kunjanna Ayyar their predecessor in title purchased the lands from the inamdars before 1861
The plaintiffs failed to prove that the inamdars sold the lands
The only direct evidence as to how Kunjanna Ayyar came into possession of the suit lands is furnished by exhibit A 2 a statement made by the inam holders to the Madurai District Collector on August 14 1868
It shows that Kunjanna Ayyar had taken the lands on cowle from the inamdars
The word cowle means a lease
In Wilson s Glossary it is stated that the word ordinarily denotes a lease and not a mortgage
Before the District Collector the plaintiffs admitted that they were holding under a cowle lease
The District Collector held that the alienation was within the purview of section 44 B The High Court also held that the plaintiffs and their predecessor in title were in enjoyment of the lands under the 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 section 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 section 44 B2ai
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 section 44 B2ai
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 continuous possession of the lands for over 80 years under the cowle lease
The original cowle is not forthcoming
The plaintiffs claimed to be permanent alienees of the lands
In all these circumstances we are inclined to presume that the cowle granted 550 a permanent lease and the inams were resumable under section 44 B 2ai
There is no period of limitation prescribed for the initiation of proceedings under section 44 B2
The section gave a new statutory right of resumption of the inams
On a resumption of the inams the title if any of all persons claiming through the inamdars to any subordinate interest in the inams stood determined
Kunjanna Ayyar and his successors in title were lessees of the inam lands under the inamdars
During the continuance of the tenancy their possession was not adverse to the inamdars
A fortiori their possession as not adverse to the Government under whom the inamdars held the inam lands
They did not acquire any prescriptive title to the kudiwaram rights either against the inamdars or against the Government
The Government could therefore resume the inam lands made under section 44 B2 and dispossess the inamdars and the plaintiffs claiming as lessees under them
The question whether an alienee from the inamdar can acquire prescriptive title to the kudiwaram rights in the inam lands against the Government and thereby defeat the latter s right to resume the inam does not therefore arise for decision and we express no opinion on it
It may be noted that in Roman Catholic Mission vs State of Madras  this Court held that there is no limitation barring imposition of assessment on the land after resuming the melwaram
It follows that both the kudiwaram and melwaram rights were rightly resumed under section 44 B24i
In the result the appeals are dismissed
In all the circumstances of the case there will be no order as to costs
GC Appeals dismissed
1 1966 3 SCR283299


Summary:
Inams were granted by Hindu kings for performance of certain servicer eg watchmen music players etc in the ancient temple of Thirumoolanathaswami
The inams were confirmed by the British Government
For over 80 years the inams were enjoyed by alienees from the inamdars
By an order passed on April 10 1947 under section 44 B of the Madras Hindu Religious Endowments Act 1926 the Revenue Divisional Officer resumed the inam lands and regranted them to the temple
His order was confirmed on appeal by the District Collector
Both these authorities held that the inams comprised both melwaram and kudiwaram rights
The alienees instituted a suit in the Court of the Subordinate Judge under the proviso to section 44 B 2 d ii asking for a decree declaring that the inam grants consisted of the melwaram only
They filed another suit asking for a declaration that the aforesaid order passed by the Collector was a nullity
In appeals against the order of the trial judge the High Court decided against the plaintiffs except as regards Dasi inams
Against the High court s order the plaintiff appellants came to this Court
It was contended on their behalf that  i the inam grants did not comprise the Kudiwaram ii the inams were personal inams burdened with services and were not resumable under siii Section 44 B2 was not retrospective in operation and did not authorise resumption of the inams on the ground of any alienation thereof made before 1934 when it came ivthere was no alienation of the inams as contemplated by section 44 B 2 a i and v the tight of resumption of the inam lands was extinguished by adverse possession of the lands by the alienees for 60 years
HELD i The documents in evidence showed that the lands were being enjoyed by the inamdars and were granted as inams
The amount of the assesment or melwaram was very low and could not be an adequate remuneration for the services to be rendered
The plaintiffs claimed title to the lands under a grant from the inamdars on the footing that the inamdars were entitled to the kudiwaram and the melwaram
The conclusion is irresistible that the inam comprised both the warams547 F G ii There is a well recognised distinction between the grant of the land burdened with a condition of service and the grant of land as remuneration for an office
Section 44 B does not apply to a personal inam burdened with a condition of service
It applies to an inam granted to an office holder as remuneration for his services connected with a math or temple as also to an inam granted to the institution directly
The inams in the present cases were not personal inams
They were inams granted 543 to office holders as remuneration for services to be rendered by them and were within the purview of section 44 B 548 B C
iii The words has made  in section 44 B2ai take in all alienations past and future and not only future alienations or alienation made after the section came into force
Section 44 B2 is in its direct operation prospective as it authorises only future resumption after it came into force
It is not properly called retrospective because a part of the requisites for its action is drawn from  a time antecedent to its passing
 The inams in the present case were resumable under section 44B2ai though the alienations were made before 1934
548 G 549B
Maxwell on interpretation on Statutes 11th Ed p 211 relied on
iv The appellants admitted that they held the land from the inamdars under a cowle lease and at no earlier stage did the appellants contend that the lease was not within the purview of section 44 B2ai
The plea that the lease was from year to year and hence outside the purview of the section could not be allowed to be raised for the first time in this Court
849 E H
v The appellants being lessees their possession was not adverse to the inamdars
A fortiori their possession was not adverse to the Government under whom the inamdars held the inam lands
They did not acquire any prescriptive title to the kudiwaram rights either against the inamdars or against the Government
The Government could therefore resume the inam lands under section 44 B2 and dispossess the inamdars and the plaintiffs claiming as lessees under then
550 B C
The question whether an alienee from the inamdar can acquire a prescriptive title to the kudiwaram rights in the inam lands and thereby defeat the latter s right to resume the inam did not on the above view arise for decision and the court therefore expressed no opinion on it Roman Catholic Mission vs State of Madras 1966 3 SCR 283 referred to
Forbes vs Noor Mahomed Tuquee 1870 13 MIA 438 464 and P V Dheenuena Rao vs Sirigiri Pedda Yella Reddi   relied on