PETITIONER: C. PERIASWAMI GOUNDAN AND ORS. Vs. RESPONDENT: SUNDARESA IYER AND ORS. DATE OF JUDGMENT: 31/07/1964 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SIKRI, S.M. CITATION: 1965 AIR 516 1964 SCR (8) 347 ACT: Inam grant-Suit for ejectment-Defendant raised plea of Lost Grant-When presumption of Lost Grant arises-Whether grant is melvaram or both varams --Right of Archakas-Whether Archakas can claim remuneration in a suit for ejectment. HEADNOTE: The appellants filed suits for the recovery of certain properties from the possession of the respondents. The plaintiffs were the trustees of the temples and the defendants were the archakas and the alienees of the suit properties. These 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, (appellants) had no title to remain in possession The plaintiff claimed that the suit properties were the properties of the deity and that the defendants had no right therein. 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 Kudivarani. Both the Trial Court and the High Court confirmed the title of the deity to both the interests (Varams) and negatived the title of the defendant- Archakas. The High Court also 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. Against this decree of the High Court both the archakas and the trustees (appellants) preferred cross appeals to this Court. 348 The main point for consideration was whether the High Court, having held that the title to the suit property vested in the deity, had jurisdiction to compel the trustees of the temple to put the archakas in possession of specified extent of property towards their remuneration. Held:(i) The principle of a Lost Grant can only be invoked where there is no acceptable evidence of the terms of the grant. In the present case there is no scope for invoking the doctrine of Lost Grant as the terms of the grant are clear from the recitals in the lnam register and the inam statement, which conclusively establish that both the Varams were granted to the deity. Sankaranarayana Pillayan v. H.R.E. Board, Madras I.L.R. 1949 Mad. 585, Buddu Satyanarayana v. Konduru Venkatapayya: [1953] S.C.R. 1001, Maginiram Sitaram v. Kasturbai Manibhai, (1921) L.R. 49 I.A. 54 and Mohamed Muzafar Ali Musavi V. Jabeda Khatun, (1930) L.R. 57 A. 125, relied on. (ii)The High Court erred in making an allocation of the lands between the trustees and the archakas in a suit for ejectment because there was absolutely no material either in the pleadings or in the evidence to make any such apportionment. 'Me High Court had De 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 of the temple; but such considerations are out of place in a suit for ejectment. Brahmayya v. Rajaswaraswami Temple, A.I.R. 1953 ',fad. 580 as Venkatadri V. Seshacharlu, I.L.R. 1948 Mad. 46. referred to. (iii)On the facts of this case it was held that the conduct of the archakas, was consistent with the recitals in the inam register, namely, that what was granted to the deity was the land i.e. both the Varams and that they had been put in enjoyment the said land in their capacity as archakas and de facto trustees. They could not by mortgaging or otherwise alienating the property claim any right in derogation of the title of the deity. They also cannot claim any right because their names are mentioned in addition to deity in the Inam register. Their names in addition to the deity are mentioned as they were in possession of the land in their capacity as de facto trustees. Arunachalam Chetti v. Venkata Chalapathi Guruswamligal, (1920) I.L.R. 43 Mad. 253 and Secretary of State for India v. Vidhya Thirta Swamiga, I.L.R. 1942 Mad. 893, referred to. Narayanamurthi V. Achaya Sastrulu, A.I.R. 1925 Mad. 411 relied on. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 646-652 of
1960.
349
Appeals from the judgment and decree dated November 28, 1962
of the Madras High Court in 385, 259, 260, 385 of 1947
respectively.
A.V. Viswanatha Sastri and R. Gopalakrishnan, for the
appellant (in C.A. Nos. 648, 649 and 650 of 1960) and for
the respondents (in C.A. Nos. 651 and 652 of 1960).
T.V. R. Tatachari, for respondents Nos. 1. 2. 5 and 6 (in
C.A. No. 648 of 1960) and appellants (in C.A. No. 652 of
1960).
S.T. Desai, K. Jayaram and R. Ganapathy Iyer, for
respondents No. 1, 3, 4, 5, 8 to 11, 15, 16, 18, 19 and 21
(in C.A. No. 649 of 1960) respondents Nos. 1, 2 and 8 (in
C.A. No. 650 of 1960) and the appellants (in C.A. No. 651 of
1960).
July 31, 1964. The Judgment of the Court was delivered by
SUBBA RAO, J. These five appeals by certificate arise out of
Original Suits Nos. 183, 184 and 185 of 1945 filed in the
Court of the Subordinate Judge, Coimbator, Madras State.
O.S. No. 183 of 1945 relates to properties claimed on behalf
of Sri Chowleswaraswami temple. Periaswami Goundar and
Samana Goundar, the plaintiffs in the said suit, are the
trustees 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.
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
350
mentioned in the schedule attached to the plaint. The
defendants, who are the archakas and alienees 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 that they had validly
alienated their interest in the said properties in favour of
the alienees.
O.S. No. 185 of 1945 was filed in the same Court by the
trustees of Sri Varadaraja Perumal 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 suits as nothing turns upon
them in these appeals.
The main issue in O.S. No. 183 of 1945, O.S. No. 184 of 1945
and O.S. No. 185 of 1945 was whether the inam grants made to
the three temples consisted of both varams or melvaram
alone.
The learned Subordinate Judge tried the said suits along
with two other suits 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
351
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 is they maintained the alienations made before May 16,
1931.
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.
Mr. Desai and Mr. Tatachari, appearing for the archakas in
the different appeals, contended that the Courts below,
having regard to the consistent and continuous conduct of
enjoyment as absolute owners of the properties by the
archakas spread over a long period of time, should have
invoked the doctrine of lost grant particularly when there
was no clear and convincing evidence of the terms of the
grant. Alternatively, they argued that the Courts should
have held, on a fair construction of the recitals found in
the inam statements and the inam register, that only
melvaram was granted to the deity.
Mr. Viswanatha Sastri, learned counsel for the trustees,
contested this position. He would say that there is no
scope for invoking the doctrine of lost grant as the
recitals in the inam register and the inam statement, which
are of great evidentiary value, conclusively establish that
both the
352
varams were granted to the deity and that all the documents,
or most of them, disclosing the conduct of the archakas
would support the conclusion that both the varams were so
granted to the deity.
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 Committee in Sankara-
narayana Pillayan v. H.R.E. Board, Madras(1). 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 utilizing the surplus for the benefit of
their families. It was contended by the appellants that
they were the owners of the suit properties, which were
subject only to a charge in favour of the kattalai for the
performance of the worship according to the prescribed
scale. The Judicial Committee, after noticing the earlier
decisions, observed:-
“The presumption, it was stated, of an origin
in some lawful title which the Courts have so
often readily made in order to support pos-
sessory rights long and quietly enjoyed,
arises where no actual proof of title is
forthcoming, and the rule has to be resorted
to because of the failure of actual evidence.
In the present case, where there is ample and
convincing proof of the nature of the grant,
the object of the endowment and the capacity
of the persons claiming the user and
enjoyment, the rule can hardly have any
application.”
In the result the Judicial Committee held that the proper-
ties were granted only to the deity and that the trustees
had no claim to any surplus income. The said principle has
been accepted by this Court in Buddu Satyanarayana V.
Konduru Venkatapayya(2). There a question similar to
(1) I.L.R. 1948 Mad. 585,605-606.
(2) (1953) 1 S.C.R. 1001, 1003.
353
that now raised was considered. The archakas claimed,
relying upon the doctrine of lost grant, that under the
original inam grant only the melvaram interest was given to
the deity. Rejecting that contention, Das, J., speaking for
the Court, observed:
“There is no doubt, on the authorities, that a
presumption of an origin in some lawful title
may in certain circumstances be made to
support possessory rights long and quietly
enjoyed where no actual proof of title is
forthcoming but it is equally well established
that that presumption cannot ‘be made where
there is sufficient evidence and convincing
proof of the nature of the grant an the
persons to whom it was made.”
The basis of this doctrine is clearly brought out by two
judgments of the Judicial Committee. Lord Buck-master,
delivering the judgment in Maginiram Sitaram v. Kasturbhai
Manibhai(1), observed :
“At the lapse of 100 years, when every party
to the original transaction 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 unlawfully
made.”
Viscount Sumner in Mohamed Muzafar Ali Musavi
v. Jabeda Khatun(2) said much to the same
effect thus
“The presumption 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
(1) [1921] L.R.49 I.A. 54.
51 Sup. Court.-23
(2) [1930] L.R. 57 I.A. 125.
354
branch of the law of evidence. It is resorted
to because of the failure of actual evidence.”
It is, therefore, clear that the said
principle can only be invoked where there is
no acceptable evidence of the terms of the
grant.
In these appeals the trustees filed copies of the relevant
extracts of the inam register and the statements filed by
the ancestors of the archakas during the inam enquiry in
support of the contention that both the varams were granted
to the deity. The evidentiary value of the recitals in the
inam register has been emphasized by the Judicial Committee
in more than one decision. In Arunachalam Chetti v. Venkata
Chalapathi Guruswamigal(1), the Judicial Committee expressed
its view on the evidentiary value of the recitals in inam
register thus:
“It is true that the making of this register
was for the ultimate purpose of determining
whether or not the lands were tax free. But
it must not be forgotten that the preparation
of this register was a great act of state and
its preparation and contents were the subject
of much consideration under elaborately
detailed reports and minutes. It is to be
remembered that the Inam Commissioners,
through their officials, made enquiry on the
spot, heard evidence and examined documents,
and, with regard to each individual property,
the Government was put in possession not only
of the conclusion come to as to whether the
land was tax free, but of a statement of the
history and tenure of the property itself.
While their Lordships do not doubt that such a
report would not displace actual and authentic
evidence in individual cases, yet the Board
when such is not available, cannot fail to
attach the utmost importance, as part of the
history of the property, to the information
set forth in the inam register.”
(1) [1920] I.L.R. 43 Mad. 253.
355
In the latest decision of the Judicial Committee reported in
Sankaranayana Pillayan’s case(1), it reiterated the same
position when it said:
“The question arose in a recent case before this Board with
reference to a Madras inam [see Secretary of State for India
v. Vidhya Thirta Swamigal(2)], where it was held that the
title deeds and the entries in the inam register are
evidence of the true intent and effect of the transaction
and of the character of the right which was being recognized
and continued. The entries in the inam register and the
description of the inamdar therein were accepted as
indications of the nature and quantum of the right and the
interest created in the land.”This view of the Judicial
Committee has been accepted and applied by the Madras High
Court in many decisions when it was called upon to decide on
the conflicting claims of a trustee and a archaka to the
properties dealt with in the inam registers.
The documents relating to Sri Pongali Amman temple are Exs.
P-2 and P-3. Ex. P-2 is the statement filed by an ancestor
of the present archakas before the Inam Commissioner. It is
of the year 1862. Ex. P-3 is an extract of ,the inam
register. As observed by the Judicial Committee, the
entries made in the said register are the result of an
elaborate enquiry based upon oral evidence, on the spot
enquiry and scrutiny of available accounts and records. The
inam statement is only one of the pieces of evidence which
the Inam Commissioner might have taken into consideration in
compiling the inam register. The recitals in the statement
must, therefore, give Place to the recitals in the inam
register, though an attempt shall be made to harmonize them,
if possible. Before considering the recitals in Ex. P-3 it
is necessary to bear in mind the common case i.e., that it
is the case of both the archakas and the trustees that Ex.
P-3 deals only with the property that was given to the
deity. But the dispute is as regards the extent of the
(1) I.L.R. [1948] Mad. 585. (2) 1.L.R [1942] Mad. 893,
908 (P.C.).
356
interest in the property that was given to the deity. WaS
it only the Melvaram in the said property that was granted
to the deity or was it that both the varams therein were
granted to the deity. Now let us give a close look to the
recitals under the various columns in Ex. P-3. The first
major head is “class, extent and value of inam”. The said
major head is divided into 7 sub-heads. in col. 2 under the
sub-head “General class to which the inam belongs”, the
entry is “religious”. In col. 3 under the head “the survey
number and the name of the field or fields comprised in the
grant-dry, wet or garden”, the particulars of the lands are
given. This entry shows that except a small extent which is
a garden the rest is dry land. These details are more
consistent with the grant being of both the varams than
being of mere melvaram. If it is of melvaram alone, the
quality of the field is quite irrelevant. Sub-heads 4, 5
and 6 show that the extent is about 18 acres and 99 cents
and the assessment is Rs. 24-14.-5. These recitals leave the
impression that the lane, was a dry land bearing a small
assessment of Rs. 24-14-5 and the, income therefrom could
not have been appreciable in those days. The second main
head is “description, tenure and documents in support of the
inam”. The entries under the various columns under this
head establish that the dry lands bearing an assessment of
Rs. 24-14-5 described in cols. 3. 4, 5 and 6 were granted as
Devadayam to the deity Pongali Amman permanently by
Madurayar Paligar of Midura. The of the grant is not known;
but even in the accounts of 1209 F. the name of the deity
was entered the grantee . The third major head is “name and
relationship of the original grantee and of subsequent and
present heirs-length of possession”. In Col. 13 and 15 the,
name of the deity alone is given. In Col. 16 under the
heading “name and age” and in Col. 17 under the heading
“place of residence” only the name of the deity is given.
Below the name of the deity the name of the Pujari “Pujari
Muttandi, age 45” is given. In Cols. 18 and 1 9 under the
heading “relation to orginal grantee or subsequent
registered holders” and “surviving heirs of the present
incumbent” no entry is made. Obviously no entries are made
under these sub-heads, as the deity cannot have relations.
The mention of Pujari Muttandi in the
357
context of other entries indicates that he was in charge of
the temple. If his name was mentioned because he had some
interest in the land the other suitable entries in regard to
his relations would have been made under the relevant sub-
heads. Indeed it is not the case of the archakas that they
have some interest in the melvaram. If the document was
concerned only with the melvaram interest, strictly there
was no place for the archaka in the document, for he had no
interest therein. His name was mentioned only as he was the
person who was in de facto management of the properties of
the deity. In Col. 21 under the heading “Deputy Collector’s
opinion and recommendation”, the entry is “To be confirmed
permanently to the Pagoda so long as it is well kept up,
subject to the existing jodi of Rs. 3-1-7”. Under Col. 22
the inam is confirmed to the Pagoda. A reasonable
interpretation of the recitals in this document leads to the
only conclusion that the Inam Commissioner was dealing with
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 were
kudivaramdars. But it is said that Ex. P-2, the inam
statement, filed by the then archakas would establish that
what was -ranted was only the melvaram. There, in Col. 2
under the head “Name of the inamdar entered in dowle and
names of the present enjoyer” the following entry is found:
Pongaliamman poosari Kuppaiyandi Muthuveeran
as per paimash entry. For fields Nos. 595 and
597 no poosari’s name is mentioned. Present
(enjoyer) Pongaliamman poosari Muthandi.”
It is said that pujari is shown as the enjoyer and,
therefore, the deity has no interest in the enjoyment of the
land. The deity was obviously represented by the pujari who
was the de facto trustee. He was in possession of the
property in his capacity as the de facto trustee. In those
circumstances if the pujari of the temple is described as an
enjoyer, it can only mean that he was in possession of the
land on behalf of the temple. Whatever ambiguity there
might be in the said recital it is dispelled by the entry in
Col. 12 under the head “Particulars of present enjoyment”,
namely
358
“By directly cultivating this land selling the produce
derived therefrom and applying the sale proceed to the
service of the deity. and my agnates have been performing
pooja and enjoying the said land according to the conditions
of the grant”. This entry is couched in clear and
unambiguous terms. It describes the nature of the enjoyment
of the land by the archaka; it clearly says that he was
cultivating the land, selling the produce and from the sale
proceeds he was doing the services to the deity in
accordance with the terms of the grant. If the deity was
entitled only to the melvaram, this recital is inconsistent
with it. The recital indicates that the entire land was the
subject-matter of the grant in favour of the deity and that
the produce from that land was utilized for the services to
the deity. Strong reliance is placed upon the entry in col.
13 under the head “Income derived from the manibam; whether
sarvadambla or jodigai, if jodigai, how much”. The entry
is, “Income Rs. 24-14-5; Jodigai Rs. 3-1-7.” Basing upon the
said entries the argument is that Ex. P-3 shows that the
assessment on the land was Rs. 24-14-5 and Ex. P-2
indicates that the same amount was the income derived from
the inam and, therefore, what was granted in inam could have
been only the assessment i.e., Rs. 24-14-5. This argument
is farfetched and based on a slender foundation. One of the
main objects of the inam enquiry was to ascertain whether
the alienated lands were free of tax or not. The archaka
who was in possession of the land on behalf of the deity had
to give information as regards the tax payable in respect of
the land in his possession. In that context the expression
“income derived from the manibam” can only mean the
assessment fixed on the land. After stating that full
assessment was only Rs. 24-14-5 the archaka stated that he
was not paying the entire amount, but was paying only the
jodigai of Rs. 3-1-7. So understood the said recitals fit
into the scheme of other recitals in the said statement and
those found in Ex. P-3. A similar argument was advanced
before this Court in Buddu Satyanarayan’s case(1) and was
rejected. Das, J., observed at p. 1006 thus:
(1) [1953] S.C.R 1001
359
“Apart from these points of distinction the
decision relied on by the learned Attorney-
General appears to us to be of doubtful
authority. As will appear from the passages
quoted above, the decision rested mainly, if
not entirely, on the fact that the amount of
assessment and the amount of income were the
same and the conclusion was drawn that the
Inam grant comprised only of the revenue
assessment, i.e., of melvaram rights. We are
unable to follow the reasoning.”
We, therefore, hold that, from the recitals in the said two
documents, what was granted to the deity was of both the
varams.
Learned counsel for the archakas relied upon the long
possession and enjoyment of the suit lands by the archakas
and their ancestors in support of their contention that the
melvaram alone could have been granted to the deity. Long
enjoyment is also consistent with an arrangement that might
have been entered into between the grantor and the then
functioning archaka or archakas having regard to the
conditions prevailing then. The lands granted were com-
paratively of small extent and they were dry lands. In
those days the income from the said lands must have been
very insignificant. There was no trustee for the temple.
In those circumstances it is, more likely that the grantor
would have put the land in the possession of the archaka so
that he might, from and out of the produce from the land,
maintain the temple, perform the puja and meet the
expenditure connected with the puja and also pay himself the
remuneration for his services to the temple. That was a
convenient arrangement which was adopted in many of the
small temples in that part of the country. This practice
was recorded with clarity by the Madras High Court in
Narayanamurthi v. Achaya Sastrulu(1). In dealing with a
similar argument the learned Judge observed:
The evidence of user and enjoyment, however
long uninterrupted and unquestioned, would be
evidence of the grant only iN the absence of
(1) A.I.R [1925] Mad.411,412-413-
360
any reliable or cogent evidence with regard to
the terms of the grant itself or in the case
of any ambiguity in the grant. It seems to be
clear that almost very recently the suit lands
yielded only just what was sufficient for
nitya naivedyam or the daily worship. No
doubt in such a state of things not only the
persons who established the temples and made
the endowments but succeeding generations of
worshippers would have allowed the archakas to
cultivate the lands and take the income
performing the puja as it was obviously the
most convenient mode of arranging for the
worship of the deities and the payment of
remuneration of the archaka service.”
“But when the income accruing from the lands
came to be considerable and the archakas, by
reason of old habits and following their fore-
fathers, claimed the lands and surplus profits
therefrom to be their own, it was only natural
that the worshippers should take steps to
secure the surplus income for the
institutions.”
These observations are very apposite and they clearly
describe the circumstances under which the archakas of the
temples 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 by
mortgaging or otherwise alienating the properties claim 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 hat the paditharam paddy
directed to be paid to the temple was more than the kist
payable thereon to the Government. In the prior proceedings
i.e., applications preferred by the
361
archakas for declaring the temples as excepted ones, there
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 tile basis
that both the varams belonged to the deity. The conduct of
the archakas, therefore, is consistent with the recitals in
the inam register, 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 facto trustees.
Learned counsel for the appellants relied upon an order made
by A.R.C. Westlake, Collector of Coimbatore, on April 14,
1941, wherein he held that only melvaram was granted to the
deity. That order came to be made under the following
circumstances. The trustees appointed by the Coimbatore
District Temple Committee filed an application before the
Revenue Division Officer under s. 44-B11(a) of the Madras
Hindu Religious Endowments (Amendment) Act, 1934, for a
declaration that the alienations of portions of inam land
attached to the temple were null and void and for resumption
and regrant of the same to the deity. One of the issues in
the application was whether the inam comprised melvaram or
both melvaram and Kudivaram. The Revenue -Division Officer
held that the inam comprised both the varams. On appeal,
the Collector came to the contrary conclusion. But a
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. 44-B 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
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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. On a consideration of
the entire evidence we agree with the conclusion arrived
at by the High Court that the grant to the deity comprised
both the varams in the suit lands.
Now coming to the appeals relating to chowleswara swami
temple, the factual and legal position is exactly the same
as in the case of Pongaliamman temple Ex. P-2 is the
statement made before the Inam Commissioner by the then
archaka and Ex. P-3 is the extract from the Inam register.
Under the relevant entries in the inam register, survey
numbers, extent, quality and the assessment of the subject-
matter of the grant are given. The land is described as
Devadayam and is stated to have been granted for the support
of the pagoda of Chowleswaraswami. The nature of the grant
is described as permanent. The date of the grant is not
known. The grantor’s name is given as Maduraiyar Paligar of
Madura. The name of the original grantee is given as
Chowleswaraswami. The grant of the land described earlier
is confirmed permanently to the pagoda as long as it is well
kept subject to the existing jodi of Rs. 24-8-2. The only
mention of archaka is in col. 17 under the head “Particulars
regarding present owner” and the entry thereunder is
“Chowleswaraswami, stanika Muttaiyan”. The other columns
where the relationship of the present owner with the
previous owners is expected to be recorded are left blank
for the obvious reason that the said columns are irrelevant
in the case of a deity. The archaka’s name in addition to
the deity is mentioned as he was in possession of the land
in his capacity as de facto trustee. The deity must
necessarily have to be represented by somebody and that he
can only be the stanika who was managing the temple and its
properties. The relevant 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. P-2. The entries are practically similar
to those found in Ex. P-2 relating to
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Pongaliamman temple with some slight variations. Col. 2
makes a clear distinction between ownership of the land and
enjoyment. The owner is shown as Chowleswaraswami and the
“present” enjoyer is shown as Chowleswaraswami’s. stanika.
The nature of the enjoyment is described in col. 2 thus:
“The said lands are leased out for varam
cultivation and I cultivate the same myself
some times and the income (masul) therefrom is
enjoyed by me and co-sharers (Pangali) and
used for Swami Viniyogam.”
It is manifest from this recital that the land was the
subjectmatter of 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 the
predecessorin-interest to 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. P-2 relating to Pongaliamman temple, and,
for reasons already given, they do not support the
contention that the assessment of Rs. 74-1-5 was only
granted to the deity.
A 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. D-1 of 1867, D-
2 of 1868, D-3 of 1870 and D-4 of 1883 are some of the
mortgages executed by the archakas ,of Chowleswaraswami
temple. Exs. D-5, D-6 and D-7 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 were 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
364
transferred in the name of the deity in 1939, the contri-
butions 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’s
case was not that the grant to the deity was only of the
melvaram but the lands were service inam lands. Though the
archakas dealt with the properties by mortgaging or
otherwise alienating them they never denied the title of the
deity. For the foregoing reasons we hold that even in the
case of Chowleswaraswami temple the original grant made to
the deity comprised both the varams.
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. Nothing,
therefore, need be said on the question of title of the land
in respect of this temple.
Coming to the cross-appeals filed by the trustees against
that part of the decree of the High Court apportioning the
property of the deity between the deity and the archakas,
the question raised is whether the High Court, having held
that the title to the suit property vested in the deity, had
jurisdiction to compel the trustees of the temples to put
the archakas in possession of specified extent of property
towards their remuneration. The High Court observed thus:
“On these findings, it is no doubt true that
the decree in favour of the plaintiffs for
possession of the properties on behalf of the
deity has to be upheld subject to the
consideration set forth below.”
Then it proceeded to consider whether any allocation of land
should be made between the archakas and the trustees. After
noticing the relevant decisions on the subject, it observed
thus:
.lm15
“These decisions are practically uniform except for the
decisions………. (in) A. S. No. 2 3 7 of 1950(1)
and………… (in) Venkatadri v. Seshacharlu(2) and have
upheld the allocation
(1) Brahnyya v. Rajeswarawami temple A.I.R. 1953 Mad. 580.
(2) I.L.R. 1948 Mad. 46.
365
of lands between the archakas and the
trustees, the proportion however varying with
the extent of the lands and the amount of the
income. None of the Judges were of the
opinion that the arrangement should be a
permanent and an unalterable one and it must
naturally be subject to revision or alteration
according to the circumstances of the case at
the instance not only of the trustees but also
at the instance of the archakas, if it was
found that the allocation was working to the
detriment of either the archakas or of the
temple.”
It concluded:
“We think, therefore, in these cases, the best
arrangement would be to allocate half the
lands in each of the suits for the
remuneration of the archakas, to be divided
equally, having regard to the wet and dry
extents, and leave the remaining half to the
trustees, who have to meet the cost of the
daily worship and accumulate the surplus in
their hands as it belongs to the deity.”
On principle, 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. In the
circumstances the Court has no option but to deliver pos-
session to the plaintiffs who had established their title to
the suit properties. In a suit for framing a scheme for a
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
366
make any such apportionment, for the allotment of a parti-
cular 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 circumstances. An
allotment cannot possibly be made on the basis of
allocations made in the circumstances and facts peculiar to
other cases. Indeed, this Court has already expressed a
clear opinion on this aspect of the case in Buddu Surya-
narayana’s case(1). Therein, Das, J., said at p. 1008 thus:
In a proceeding for the framing of a scheme
relating to a temple it may be permissible to
take into account the claims, moral if not
legal, of the Archakas and to make some pro-
vision for protecting their rights, but those
considerations appear to us to be entirely out
of place in a suit for ejectment on proof of
title.”
With respect we entirely agree with the said observations.
It follows that the High Court went wrong in making an
allocation of the lands between the trustees and the
archakas in a suit for ejectment.
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.
In the result, Civil Appeals Nos. 648 and 650 of 1960 filed
by the trustees are allowed but, in the circumstances,
without costs. Civil Appeal No. 649 of 1960 filed by the
trustees is also allowed without costs except as against the
(1) [1953] S.C.R. 1001
367
14th respondent. The said appeal against the 14th
respondent is withdrawn on the ground that his interest as a
mortgagee is not now subsisting and the said appeal against
the 14th respondent is dismissed as withdrawn but, in the
circumstances, without costs. Civil Appeals Nos. 651 and
652 of 1960 filed by the archakas are dismissed with costs.
One hearing tee.
Ordered accordingly.