Case: C. Periaswami Goundan And Ors Vs. Sundaresa Iyer And Ors

2. O. S. No. 183 of 1945 relites to properties claimed on behalf of Sri Chowleswaraswami temple. Periaswami Goundar and Samana Goundar, the plaintiffs in the said suit, are the trustee of the said temple. They filed the suit for the recovery of the plaint-scheduled properties from the defendants who are the archakas and the alienees from them on the ground that the said properties were the properties of the deity and that the defendants had no right therein. They also claimed mesne profits for a period of 3 years prior to the suit. The defendants filed a written statement admitting the claim of the deity to the melvaram interest in the properties but claimed that the archakas owned the kudivaram therein and that some of the said properties were validly transferred to the alienees.3. O. S. No. 184 of 1945 was filed in the said Court by the trustees of Sri Pongali Amman temple situated in the village of Vengambur for the recovery of the properties mentioned in the schedule attached to the plaint. The defendants, who are the archakas and aliences from them, inter alia, pleaded that only melvaram in the said properties was granted to the deity and that the archakas owned the kudivaram therein and they had validly alienated their interest in the said properties in favour of the aliencees.4. O. S. No. 185 of 1945 was filed in the same Court by the trustees of Sri Varadaraja Perunal temple situated in Vengambur village. The plaintiffs sought to recover the properties mentioned in the schedule annexed to the plaint from the archakas and the alienees from them on the same grounds and the defendants raised similar pleas. It is not necessary to mention other defences raised in the written statements filed in the three suit as nothing turns upon them in these appeals.The learned Subordinate Judge tried the said suits along with two othersuits and delivered a common judgment therein. On the said issue he held in all the three suits that the grants to the three deities comprised both the varams. He further held that the alienations made by the archakas prior to May 16, 1931, were binding on the trustees of the respective temples and that the alienations made subsequent to that date were liable to be set aside. In the result the learned Subordinate Judge gave a decree in each of the suits for possession of the plaint-schedule properties except those covered by the alienations effected before May 16, 1931. He also decreed mesne profits to the plaintiffs for a period of 3 years prior to the suits and also subsequent profits from the date of the suits to the date of delivery of possession at the rate fixed by him. The defendants in the said suits preferred appeals to the High Court of Madras, being appeals Nos. 259, 260 and 385 of 1947. The said appeals were heard by a Division Bench of the said High Court, consisting of Satyanarayana Rao and Rajagopalan, JJ. The High Court agreed with the trial Court on the finding relating to the nature of the grants to the temples, that is to say it held that the grants to the temples comprised both the varams, namely, melvaram and kudivaram. The learned Judges, for the first time, though there was no pleading, no issue and no contention in the trial Court, held that the archakas were entitled to have a portion of the said properties allotted to them towards their remuneration for the services to the temples and gave a decree directing the division of the said properties into two halves and putting the archakas in possession of one half. They did not disturb the finding of the learned Subordinate Judge in regard to the alienations, that it they maintained the alienations made before May 16, 1931.7. Against the decree of the High Court in A. S. No. 259 of 1947 and A. S. No. 385 of 1947 both the archakas and the trustees preferred appeals to this Court questioning the correctness of the decree of the High Court in so far as it went against them. Against the decree in A. S. No. 260 of 1947 no appeal was filed by the archakas, but the trustees preferred an appeal questioning that part of the decree directing a part of the properties to be put in possession of the archakas.

Reasoning:
The basis of this doctrine is clearly brought ought by two judgments of the Judicial Committee. Lord Buckmaster, delivering the judgment in Magniram Sitaram v. Kasturbhai Manibhai, 49 Ind App 54 : (AIR 1922 PC 163) observedthe lapse of 100 years, when every party to the original inaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfullySumner in Mohamad Muzafar Ali Musavi v. Jabeda Khatun 57 Ind App 125 : (AIR 1930 PC 103  ) said much to the same effect thuspresumption of an origin in some lawful title, which the Courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming, is one which is not a mere branch of the law of evidence. It is resorted to because of the failure of actual evidence.is, therefore, clear that the said principle can only be invoked where there is no acceptable evidence of the terms of theobservations are very opposite and they clearly describe the circumstances under which the archakas of the temple were allowed to be in possession of the temple lands. If that was the situation under which the archakas came into possession of the lands, they were certainly in the position of de facto trustees and they could not be mortgaging or otherwise alienating the properties claims any rights in derogation of the title of the deity. Indeed the documents on which the learned counsel relied contain clear and unambiguous admission on the part of the archakas that the land itself was the property of the deity. Exs. P.12, P-13, P-14 and P-15 are copies of mortgages executed by the archakas. Under these documents the land in their possession was mortgaged and it was described as paditharam manyam. They also disclosed that the paditharam paddy directed to be paid to the temple was more than the kist payable thereon to Government. In the prior proceedings i.e. applications preferred by the archakas for declaring the temples as excepted ones, them was no claim that the melvaram alone was granted to the deity. In other proceedings the archakas claimed that the lands were service inams, but they did not come forward with the present plea that melvaram only was granted to the deity. Further, pattas for the suit lands were transferred without any objection of the archakas in the name of the deities in 1939 and the archakas also paid contribution to the Madras Hindu Religious Endowments Board on the basis that both the varams belonged to the deity. The conduct of the archakas, therefore, is consistent with the recitals in the inam registration namely, that what was granted to the deity was the land i.e. both the varams, and that they had been put in possession and enjoyment of the said land in their capacity as archakas and de factoa consideration of the entire evidence we agree with the conclusion arrived at the by the High Court that the grant to the deity comprised both the varams in the suitprinciple, in our view, the conclusion arrived at by the learned Judges of the High Court is unsupportable. The suits were based on title and the relief asked for was the eviction of the archakas from the suit property as they according to the plaintiffs, had no title to remain in possession. The archakas raised the plea that the title of the deity was confined only to melvaram in the plaint schedule lands and that they had title to the kudivaram. Both the courts confirmed the title of the deity to both the interests and negatived the title of the defendant-archakas. In the circumstances the Court has no option but to deliver possession to the plaintiffs who had established their title to the suit properties. In a suit for framing a scheme for temple a Court may, in an appropriate case, put the archaka in possession of a portion of the temple lands towards his remuneration for services to the temple; but these are not suits for framing a scheme. That apart, there is absolutely no material either in the pleadings or in the evidence to make any such apportionment, for the allotment of a particular share to the archaka would depend upon the total income from the lands, the value of the articles required for the worship, the amount of reasonable remuneration intended to be provided and other similar circumtances. An allotment cannot possibly be made on the basis of allocations made in the circumstances and facts peculiar to otherrespect we entirely agree with the said observations. It follows the High Court went wrong in making an allocation of the lands between the trustees and the archakas in a suit for ejectment.19. Learned counsel for the archakas made an impassioned appeal that we should give a direction to the authorities concerned to make an apportionment of the properties on the lines suggested by the High Court, having regard to the long enjoyment of the temple lands by the archakas. Long enjoyment of the temple lands by the archakas is not a peculiar feature of this case. The authorities concerned; have made suitable arrangements for remuneration in the case of other temples and we have no doubt that they would make a reasonable provision for the archakas in the present case also for their remuneration in accordance with law.At the outset it would be convenient to notice briefly the scope of the doctrine of lost grant, as the learned counsel for the appellants have strongly relied upon it. The doctrine of lost grant with its limitations has been succinctly explained by the Judicial Committce in Sankaranarayana Pillayan v. Hindu Religious Endowments Board, Madras, ILR (1948) Mad 585 at pp.: (AIR 1948 PC 25   at p. 33). The temple in that case had 4 kattalais. Though the temple had a general trustee, each of the kattalais was in the charge of a special trustee or trustees. In regard to one of the kattalais after meeting all the expenses there remained a surplus which the trustees claimed for their own benefit and in fact they were utilising the surplus for the benefit of theirreasonable interpretation of the recitals in this document leads to the only conclusion that the Inam Commissioner was dealing in the entire interest in the land, the particulars whereof were given therein. There is no evidence that at the time the grant was made the archakas or any others weretherefore, hold that, from the recitals in the said two documents, what was granted to the deity was of both thea perusal of the order shows that his conclusion was based upon pure surmises. The Collector did not refer to any document or evidence for his conclusion. The trustees filed a suit in the Court of the Subordinate Judge, Coimbatore, for a declaration that the inam grant in favour of the plaint temple comprised both the varams. The learned Subordinate Judge held that S.of the Act had no application as the grant was to the deity and was not a service inam. The result of this litigation was that there was no final decision on the question whether the grant was of both the varams or only of the melvaram. These proceedings cannot, therefore, be of any evidentiary value in this case. Ona consideration of the entire evidence we agree with the conclusion arrived at the by the High Court that the grant to the deity comprised both the varams in the suitrelevant entries in the inam register do not countenance any contention that the melvaram interest only in the land was granted and that was confirmed to the deity. If the melvaram was granted or confirmed, the recitals would have been different. The corresponding inam statement is Ex.The entries are practically similar to those found in Ex.relating to Pongaliamman temple with some slight variations. Col. 2 makes a near distinction between ownership of the land and enjoyment. The owner is shown as Chowleswaraswami and the "present" enjoyer is shown as Chowleswaraswamis stanika. The nature of the enjoyment is described in Col. 2 thusis manifest from this recital that the land was theof the grant and the income, therefrom was derived either by direct cultivation or by leasing out the same, and the said income was enjoyed by the archaka and used for Viniyogam. The point to be noted is that theto the present archaka admitted that the produce from the land was utilized for the services of the deity. The said admission is inconsistent with the allegation that the grant was only of melvaram. The entries in Col. 13 are similar to those contained in the corresponding Ex.relating to Pongaliamman temple, and for the reasor already given, they do not support the contention that the assessment of Rs.was only granted to theA combined reading of these two documents leads to the only conclusion that both the varams were granted to the deity. Just as in the case of Pongaliamman temple so in the case of Chowleswaraswami temple, the subsequent conduct of the archakas belie their assertion that only melvaram interest in the land was granted to the deity. Exs. D1 of 1867,of 1868, D/3 of 1870 andof 1883 are some of the mortgages executed by the archakas of Chowleswaraswami temple. Exs.are sales. In all these documents the property is described as Chowleswaraswami manyam. If really the kudivaram belonged to the archakas, they would not have described the land they are alienating as Chowleswaraswami manyam. The description of the property as that of the deity is consistent with the title of Kudivaram also being in the deity. Further, as in the other case, the pattas were transferred in the name of the deity in 1939, the contributions were paid to the Hindu Religious Endowments Board on the basis that the entire interest in the lands belonged to the deity and that in other proceedings the archakas case was not that the grant to the deity was only of the melvaram but the lands were service inam lands. Though the archaks dealt with the properties by mortgaging or otherwise alienating them they never denied the title of the deity. For the foregoing reason we hold that even in the case of Chowleswaraswami temple the original grant made to the deity comprised both the varams.17. In regard to Sri Varadaraja Perumal temple, no appeal was filed by the archakas and they allowed the judgment of the High Court in regard to the title to become final. Nowthing, therefore, need be said on the question of title of the land in respect of this temple.