Krishna Rao, J.
1. The appellant in this appeal is Sri Vallabharayaswamy Varu (Deity of Swarna Village, Bapatla Taluk, Guntur District) on whose behalf the suit O. S. 22/59 (originally instituted in forma pauperis as O. P. 44/47) was filed in the Court of the Subordinate Judge, Bapatla for recovery of possession of the Plaint A Schedule immoveable properties of a total extent of Ac .92.00 consisting of wet and dry lands in Swarna Village, moveable properties as per Plaint B Schedule or their value thereof, for rendition of account of profits for ten years and also for recovery of damages of Rs. 1,500/- towards cost of pati earth said to be appropriated by the defendants with a further prayer for future profits. The case of the plaintiff is that the plaint schedule properties belonged to the Deity. that they were endowed to the Deity and that the defendants who are Archakas of the temple have no title to remain in possession thereof. The defendants contended that the suit lands do not constitute an endowment in favour of the plaintiff Deity, that the lands were granted to their ancestors personally burdened with the service of maintaining Akhanda Deepam in the suit temple. and that the plaintiff is not therefore entitled to dispossess them from the lands to the possession of which they are entitled in law. The Court below on a consideration of the entire evidence I the case. came to the conclusion that the lands described in items 1 to 5 of the plaint A Schedule were granted to the ancestors of the defendants burdened with service and that they do not constitute the endowment of the temple. Regarding item 6 of the Plaint A Schedule, the Court below held that the plaintiff failed to establish its title. there being no documentary evidence in support of the plaintiff's title. With respect of item 7 which is a vacant site adjoining the temple the defendants conceded that they have no claim on the said property. With respect of the moveable as per B Schedule, the Court below held that except item 2 for which there is no proof. the articles belonged to the Deity and while holding that they are necessary for the worship of the Deity. the Court below upheld the title of the plaintiff to the said articles. In view of the above findings, the Court below decreed the suit only with respect of item 7 of the A Schedule and moveable as per the B Schedule excepting item 2, with proportionate costs and the suit was dismissed with respect to the lands covered by items 1 to 6 and also with respect to the relief for accounting. The above appeal has therefore been filed on behalf of the plaintiff-Deity claiming various reliefs which were negatived by the lower Court.
2. The main question which falls for determination in this appeal is whether items 1 to 5 of the plaint A Schedule were granted in favour of the temple as contended on behalf of the plaintiff or in favour of the ancestors of the Archakas burdened with service as contended by the defendants. This question turns upon the construction of the various entries and recitals in the Inam Fair Register Ex. A. 2 and the Title Deed Ex B. 10 granted at the time of the Inam Commission Enquiry. Column 1 relating to the class of inam shows that it is Devadayam. It is now settled law that this entry by itself is not conclusive and that it merely signifies that it is a religious grant. Columns 3 to 5 relating to the extent of the inam show that the excess which stood over for 50 years and the excess extent which was found for a period of another 30 years was noted and shown as included in the total extent of the grant. Column 8 shows that it is Devadayam for the Archakatwam service or rendering daily worship to the Akhandam or maintaining lamp, Column 10 shows that it is hereditary. In Column 11, referring to the name of the grantor. it is stated that the name of the grantor is unknown. From the entries in Column 12, we find that the original sanad has not been placed before the Inam Commissioner. In Column 13, the name of the grantee is shown as Sri Vallabharajaswamy Varu enjoyed by Archakulu Column 14 shows that the name of Swamy Varu is noted in the Register of permanent settlement. Column 15 shows that the name of Swamy Varu is entered in the survey and village accounts. Under Column 16, the present holder is described as Divi Vallabhacharyulu. Under Columns 19 and 20, the names of the heirs of the original Archakas are set out. Column 21 sets out the opinion and the recommendations of the Deputy Collector which are in the following terms:
' This was a village connected with the Zamindari of Venkatagiri Nellore District the Government purchased it in Fasli 1283 .......... The original grant of the inam is entered in a series of accounts as 24 gorrus but on my enquiry from the village authorities and the inamdars present it appears that the inam was surveyed with reference to the actual occupation of the lands and that the excess now found was not taxed at any time. Accounts of Fasli 1206 and 1238 prove their assertions..... but excess is more than that shown in the accounts. The oral testimony of the villagers showed that they have been enjoyed as inam for a series of years. Under these circumstances I recommend that the whole inam as surveyed be confirmed to persons rendering archakam and Akhandam service to the temple for the time being under Rules 3 and 27'.
In Column 22 which represents the final decision of the Inam Commissioner, we find that the inam is confirmed on a quit rent of Rs. 24/- being the charge on full assessment on the excess over and above the extent of the grant so long as the service of the pagoda is efficiently kept up.
3. The next and most important document for consideration is the inam title deed Ex. B. 10 dated 4-10-1881, issued at the time of inam commission enquiry. This document, Ex. B. 10 reads as follows:
'Governor in Council of Madras title deed granted to Divi. Vallabhacharyulu.
1. By order of the Governor in Council of Madras acting on behalf of the Secretary of State for India in Council, I acknowledge your title to a Devadavam or Pagoda-Inam consisting of the right to the Government revenue on land claimed to be AC. 86.31 cents of dry and Ac. 7.44 cents of wet, and situated in the village of Swarna taluka of Bapatla. District of Krishna and held for the Archakam service or rendering daily worship &c.; to Sri Vallabharayaswami Pagoda in the village.
2. This inam is confirmed to you and your successors. subject to a quit-rent of Rupees 24-0-0 per annum being the charges on excess to be held without interference so long as the conditions of the grant are duly fulfilled.
11th Oct. 1881. Inam Commissioner.
Seal of Inam Commission , Madras.'
Exhibit A-3 is the Inams B Register which came into existence long after the Inam Fair Register and the Title Deed, Ex. A. 3 relates to two Deities and under Columns 12 and 13, the name of the Deity by Manager was entered and it is stated that the inam is for the maintenance of the Devadavam Sthapanam But the Court below declined to place any reliance on these recitals as they are subsequent to Ex. A. 2 and Ex. B. 10 and that they do not have any overriding effect on the title deed already referred to. On the other hand, Ex. B. 14 which is a copy of the inams register shows the name of the inamdar as Divi Vallabhacharyulu. The objection taken to this document was that it is a copy of a copy and hence inadmissible. As the original was filed in the lower Court and taken back for the filing the same is another Court. the Court below admitted the document. The other documents are Ex. A 4. the Survey and Settlement Register of 1873 which was also referred to in the Inam Fair Register. Ex. A. 8 to Ex. A. 17 have been filed as additional evidence in this Court and we have admitted the same as there was no objection on behalf of the respondent. Ex. A. 8 and Ex. A 9 are the re-survey and settlement registers which described the Deity as the Pattadar and Ex. A 10 to Ex. A 17 are the extracts from the Adangal (cultivation) registers wherein also it is shown that the patedar is the deity. Relying on the above documents. the learned counsel for the plaintiff-appellant raised the following points; Fistly, that the inam is endowed to the temple. secondly, that even if it was granted to the Archakas it was only in the capacity as de facto trustee on behalf of the temple. and thirdly, that it is not a personal grant to the Archakas burdened with any service. IT is, however, not disputed on behalf of the appellant that if the inam is really granted to the Archakas burdened with service the temple is not entitled to possession of the same.
On the other hand, Sri Venkataramasastry on behalf of the defendants -Archakas contended that the most crucial document for consideration is the title deed read in the light of the recommendations contained in the Inam Fair Register and that the entries in the other revenue accounts such as settlement registers and adangal registers are not conclusive on the question. As already pointed out above. the recommendations of the Inam Commissioner in Column 21 of Ex. A. 2 clearly show that the Inam is to be confirmed to the persons rendering Archakatwam service and Akhandam in the temple. The argument of the appellants learned counsel is that column 22 which refers to the confirmation of the grant so long as service is efficiently kept up does not mention the name of the service holder as the person in whose favour the grant has to be confirmed and that it is therefore indicative of the grant being confirmed in the name of the Deity. But this contention cannot be accepted in view of the clear recitals in column 21 of Ex. A. 2 which refer to the confirmation in favour of the persons doing service. The recitals in Ex B. 10 the title deed, are so clear that there is no room for controversy as it is specifically recited that the title of Divi Vallabhacharyulu is acknowledged and that it is confirmed to him and his successors. This recital is most clinching on the question and does not lend support to the argument of the learned counsel for the appellant it is given to the Archaka as a de facto trustee of the temple. The reference to Devadayam or pagoda Inam merely refers to the general nature of the inam and service associated with the pagoda. We also find from the title deed that the entire extent including the extent found upto the date of the inams enquiry has been confirmed in the name of the Archakas which would not have been the case if the original grant were really in favour of the Deity.
4. The learned Advocate for the appellant placed reliance on President of the Board of Commissioners for H. R. E. Madras v. Koteswara Rao. (1937) 2 Mad LJ 413: (AIR 1937 Mazd 852). Satyanarayana v. Venkatappayya : 4SCR1001 . Lakshmi Narasimhachari v. Agasteswari Swami Varu : 2SCR768 , Venkayya v. Sriramamurthy, AIR 1957 Andhra Pradesh 53; Pupnniah v. Sri Lakshmi Narasimhamsamy Varu (1963) 2 Andh LT 365 and Periaswami Goundar v. Sundaresa Ayyar, (1965) 1 Andh LT 377: (AIR 1965 SC 561) in support of his contention that the inam is endowed to the Deity, But an examination of these cases shows that they are not cases where the title deed similar to the present case has been considered and on the other hand the recitals in the name registers in some of these cases clearly indicates that the recommendation of the Commissioner was for confirmation to the Deity. The appellants' learned counsel placed special reliance on certain observations in (1937) 2 Mad LJ 413: (AIR 1937 Mad 852) which were approved by the Supreme Court in : 2SCR768 that there is a distinction between a grant merely confirmed so long as service is performed and a grant confirmed to a party so long as the service is performed and that it is only in the latter case and not former, that is held to be a personal grant burdened with service. But in the present case, Column 21 of the Inam Fair Register gives a clear indication that the inam is recommended in favour of the person doing service and if the entries in the last column namely confirmed without any mention of the persons, they have to be read in the light of the recommendations contained in column 21 and also coupled with the recitals in the title deed which confirmed the inam to the individual and his successors. The other contention of the appellants' learned counsel, namely, that the grant is made in favour of the individual as representing the Deity is not supported by any of the recitals in the documents. It was further pointed out by the learned counsel that the various revenue registers including the settlement registers and the adangal registers show the name of the Deity as the Pattedar and that even prior to the inam proceedings, the name of the Deity is shown as the pattadar in the survey and settlement register. The Inam Fair Register Shows that the entries in the Settlement Registers available at the time of the enquiry have been considered; but nevertheless, the Inam Commissioner recommended the inam in favour of the individual and issued the title deed to the individual and his successors. In view of these proceedings, the subsequent revenue registers which show that the Deity is the pattadar are of no significance because they cannot outweigh the title deed granted in favour of the individuals.
5. In Adinarayana v. Appan Srirangachariar, AIR 1941 Mad 217 it was held that the documentary and oral evidence relating to a period subsequent to the grant are not likely to be of much use in ascertaining the nature of the original grant. We therefore hold that it is the inam title deed which prevails over any other revenue accounts as it is the source of title.
6. On the other hand, Sri G. Venkatarama Sastri the learned counsel for the respondents cited a number of cases in which it has been uniformly held that though inam is described as Pagoda inam, it is a personal inam burdened with service when the title deed is granted in favour of a person and that in such a case, the Deity is not entitled to recover possession from the service holders. In Sriranga Chariar v. Pranatharthihara Chariar 30 Ind Cas 74: (AIR 1916 Mad 331) where the inam title deed recited that the inam is a Devadayam or pagoda service inam 'for the support of the pagoda called service of Acharyapurusha in the said temple', it was held that the words 'support of pagoda' do not make very good sense and were probably part of the common form drawn up for the confirmation of devadayam inams and that the grant was really to certain named persons for the performance of service of Acharyapurusha in the temple and that no part of it was intended for the benefit of the temple. In Matte Sarayya v. Vepparathi Vydyanatham ,27 Mad LJ 57; (AIR 1915 Mad 626) it was held that where the inam is one granted by the Government to a person doing service in the temple authorities, the latter cannot intervene to prevent alienation though the Government might. In Tangirala Chirnjivi v. Raja Manikya Rao, 27 Mad LJ 179: (AIR 1915 Mad 505 (1) it was held, construing the inam title deed, that the trustees had no power to resume an inam granted to certain Vritikars of the temple but was granted to the temple but was granted to the Vritikars themselves conditional on their performing the service by the Zamindar and was confirmed by the Government. In Seshadu Reddi v. Subrahmania Aiyar, AIR 19123 Mad 163 in dealing with item 2 of the suit properties, it was held that though the title deed described the inam as Devadayam or pagoda inam still, on a consideration of all the circumstances, it was held, that the grant was of an inam to be held by the individual and his heirs burdened with the trust of doing the service for the temple and that in such a case any surplus income left after the performance of the services accrues to the benefit of the individuals and that they need not account to the temple. In Subramania v. Kailasanath AIR 1934 Mad 258 (2) construing a title deed which was confirmed to the individual and his successors so long as the conditions of the grant are fulfilled, it was held that the mere use of the word Devadayam is not decisive of the question, that it merely indicates that the ultimate purpose is religious and following the ruling in 30 Ind Cas 74 (AIR 1916 Mad 331), it was held that the grant was to the individual burdened with the performance of service and that consequently the trustee of the temple had no right to recover the inam from the holders thereof.
In Sami Ayyangar v. Venkatramana, AIR 1934 Mad 381 it was again pointed out that the use of the word Devadayam does not mean that the grant is made to the temple and that where the grant contains a clause that it is to be confirmed to the party as long as he continues the performance of the service, it is a grant to the party burdened with service and not the Deity even though the word Devadayam was used. Similarly, Bala Tripurasundaramma v. Secretary of State, AIR 1928 Mad 282 it was held that the mere use of the word Devadayam in a grant does not show that it is a religious endowment and that the word merely indicates a gift for religious purposes. In Venkata Narayana v. H. R. E. Board, AIR 1946 Mad 81 it was held that an inam granted to an individual burdened with service of Veda Parayana is a personal grant subject to the performance of service and that it is not a religious endowment as defined in the Madras Hindu Religious & Charitable Endowments Act. The said view was followed in Hanumantha Rao v Chengalvarayudu, (1954) 1 Andh LT 53: (AIR 1954 Andhra 25) where it was held that a grant in favour of an Archaka burdened with service does not constitute a religious endowment. In (1963) 2 Andh LT 365 it was held that the use of the expression Devadayam does not by itself import that the grant was in favour of the institution. that it only signifies that it is a gift for the purpose connected with religion, that in the absence of confirmation to a named individual with the added obligation of performance of service, the grant could not be regarded as a personal one, and that the confirmation being couched in passive language namely 'so long as the service is performed' is a clear indication that it pertains to the office. Similarly, in Sundareswarar Devasthanams v. Shanmuga Sundara (1957) 2 Mad LJ 218 which was followed with approval in (1963) 2 Andh LT 365 it was held on a construction of the grant that it was given for the performance of service in a temple, that he service-holder is entitled to the compensation under the Madras Estates Abolition Act that the Devasthanam cannot be regarded as the principal landholder, and that the Devasthanam was not entitled to claim any compensation.
7. The appellant's learned counsel also pointed out that the trustees of the temple in the instant case never showed the suit properties as belonging to the Deity in the property register kept by the trustees under the provisions of the Hindu Religious & Charitable Endowments Act. On a consideration of the documentary evidence and the principles laid down in the above decisions, the following conclusions are deduced Though the inam is described as Devadayam ,it is not conclusive of the fact that it was granted to the Deity but it merely indicates that it is of a religious purpose. Unless the grant is made in favour of the Deity or the Manager for the time being, as representing the temple, it cannot be considered as a grant to the Deity. The mere fact that column 22 of the Inam Fair Register does not mention the name of the individual in whose favour the inam is to be confirmed does not conclude the matter in view of the fact that column 21 of the Inam Fair Register contains a clear recommendation that the inam should be confirmed to an individual. The recommendations contained in the Inam Fair Register have to be read along with the recitals in the inam title deed which was issued as a result of the inam proceedings. The description of the inam as Devadayam Pagoda inam in the title deed is not indicative of the fact that it was granted to the Deity. It should be construed in the same manner as the word 'Devadayam' occurring in the inam fair Register is construed, namely that it is only for a religious purpose. The recital in the inam title deed that it is granted 'to you and your successors' so long as the service is performed places the matter beyond any doubt in arriving at the conclusion that the grant is one to an individual burdened with service. For these reasons, we are of opinion agreeing with the court below that items 1 to 5 of the A Schedule belong to the defendants burdened with service and that the plaintiff is therefore not entitled to recovery of possession.
8. The learned counsel for the respondents stated that the Inams Tahsildar acting under the Andhra Inams Abolition and Conversion into Ryotwari Act, held on his order, Ex. A. 5, that the inam belongs to an individual and not to the institution. During the pendency of the present appeal, the said decision of the Tahsildar has been confirmed n appeal by the Revenue Divisional Officer whose order is now filed as additional evidence marked as Ex. B.15, C. M. P. No. 7497/64 was filed for admitting Ex. B. 15 as additional evidence and it is therefore ordered. C. M. P. 1966/67 filed on behalf of the appellants for admission of Exhibits A-8 to A-17 is ordered for reasons already recorded supra.
9. Regarding item 6 of the plaint A Schedule, no attempt has been made to establish the plaintiffs' title thereto The Court below is therefore right in dismissing the suit with respect to item 6 of the A Schedule in view of our finding that the plaintiff is not entitled to possession, the relief for accounting and profits does not arise. The appeal is therefore dismissed with costs one set. As the appeal is filed in forma pauperis. the appellant will pay the Court fee payable on the memorandum of appeal.
Writ Petition No. 691/59:
10. One of the Archaka-respondents in the above appeal filed this Writ Petition for the issue of a writ in the nature of Mandamus directing the Respondents i.e. the Commissioner. Hindu Religious and Charitable Endowments. Hyderabad the Assistant Commissioner. District Collector and Tahsildar. Bapatla to forbear from collecting the contribution from the petitioner under the Revenue Recovery Act. The case of the petitioner is that the property in their possession does not belong to the Deity and that it does not fall within the definition of religious institution or endowment. that it is a personal grant in favour of the Archaka burdened with service and that in such a case, the respondents are not entitled to levy any contribution under Section 76 of the Hindu Religious & Charitable Endowments Act. 1951, corresponding to Section 59 of the New Andhra Pradesh Charitable and Hindu Religious Institution and Endowments Act (XVII of 1966). In view of the findings arrived at in the above appeal. the learned Counsel for the petitioner Sri D. V. Reddi Pantulu contends, relying on the ruling in AIR 1946 Mad 81 that in the case of an inam granted to an individual subject to the condition of service. there is no liability to pay contribution to the Government. The said ruling has also been referred to with approval in (1954) 1 Andh LT 53 : (AIR 1954 Andhra 25) It therefore follows that the respondents have no right to levy contribution against the petitioner in respect of the lands which are the subject-matter of the title deed referred to in the above appeal.
11. But the learned Government Pleader contends that the liability to pay contribution is governed by the new Andhra pradesh Act XVII of 1966. Section 109 of that Act reads as follows:
'109. Repeals and Savings: (1) The Andhra Pradesh (Andhra Area) Hindu Religious and Charitable Endowments Act, 1951 and the Andhra Pradesh (Telangana Area) Wakf Regulation , 1349 Fasli, are hereby repealed.
(2) Notwithstanding such repeal- (a) all rules made, notifications or certificates issued, orders passed. decisions made, proceedings taken and other things done by any authority or officer under the repealed Act or regulation as the case may be, shall in so far as they are not inconsistent with this Act be deemed to have been made. issued, passed , taken, or done by the appropriate authority or officer under the corresponding provisions of this Act and shall have effect accordingly until they are modified cancelled or superseded under the provisions of this Act.'
Section 59 of the new Act reads as follows:
'59 Liability of Institution or endowments or Dharmadayam to pay annual contribution:
(1) In respect of the services rendered by the Government and their employees. every charitable or religious institution or endowment or Dharmadayam whose annual income is not less than rupees one thousand. shall be liable to pay to the Government annually from the income derived by it. such contribution not exceeding seven per centum of the annual income as may be prescribed.'
Section 76(1) of the old Act which corresponds to Section 59 of the new Act reads thus:
'76 (1) In respect of the services rendered by the Government and their officers. every religious institution shall, from the income derived by it, pay to the Government annually such contribution not exceeding five per centum of its income as may be prescribed.'
Under the 1951 Act, 'religious endowment' is defined under Section 6 (14) as follows:
'6 (14) 'Religious endowment' or 'endowment' means all property belonging to or given or endowed for the support of maths or temples. or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the archaka, service holder or other employee of a religious institution:
Explanation: (1) Any inam granted to an archaka, service-holder or other employee of a religious institution for the performance of any service or charity in or connected with a religious institution shall not be deemed to be a personal gifts to the archaka, service-holder or employee but shall be deemed to be a religious endowment.
Endowment: (2) All property which belonged to , or was given or endowed for the support of a religious institution. or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity shall be deemed to be a religious endowment' or 'endowment' within the meaning of this definition, notwithstanding that, before or after the commencement of this Act, the religious commencement of this Act. the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be performed:
Provided that this Explanation shall not be deemed to apply in respect of any property which vested in any person before the commencement of this Act, by the operation of the law of limitation.
(15) 'Religious institution' means a math, temple or specific endowment;
(16) 'Specific endowment' means any property or money endowed for the performance of any specific service or charity in a math or temple. or for the performance of any other religious charity. but does not include an inam of the nature described in Explanation (1) to Clause (14).'
Under the new Act. Section 2 (21) defines 'religious endowment' as follows:
'2 (21). 'Religious endowment' means property belonging to or given or endowed for the support of a religious institution, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity: and includes the institution concerned and also the premises thereof but does not include gifts of property made as personal gifts to the archaka, service-holder or other employee of a religious institution.
Explanation: Property belonged to or was given or endowed for the support of a religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious endowment within the meaning of this definition. notwithstanding that, before or after the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be performed.'
It is contended by the learned Government Pleader that the omission in the new Act of Explanation (1) to S.6 (14) of the old Act is an indication that personal inams burdened with service also are included within the definition of 'religious endowment' We cannot agree with this contention because by the mere omission of an Explanation, it cannot be readily inferred that the definition in the new Act includes what was omitted from the old Act. We have only to look to the new Explanation to Section 2 (21) of the New Act and unless there is anything in the new section to warrant such a conclusion . the contention cannot be accepted. Even the new section contemplates the existence of a religious endowment which means an endowment to the temple. WE therefore hold that the ruling in AIR 1946 Mad 81 still governs the field. even after the Act has been amended. Even otherwise the provisions of the new Act can be applied to pending proceedings only so long as there is no inconsistency between the provisions of the old Act and the new Act.
12. For the above reasons, we allow the Writ Petition and direct the issue of a Writ in the nature of Mandamus restraining the respondents from levying contribution against, the lands in the possession of the petitioner. The petitioner is entitled to costs. Advocate's fee Rupees 100/-.
13. Appeal dismissed: Writ petition allowed.