1. This appeal arises out of a suit instituted by the landlord to resume a certain muafi land on the allegation that the grant was made for services which are no longer required by the proprietor. The services were the worship of a certain idol in a certain temple.
2. The first Court dismissed the suit, the lower appellate Court decreed it and a learned Judge of this Court dismissed the appeal.
3. The decision of the case before us depends on a proper construction of the wajibularz which contains the terms of the grant. The wajibularz runs as follows:
In this mahal 38 bighas 17 biswas are held by Gayapuri Goshain Chela of Bhagwanpuri for the purposes of the performance of puja of Mahadeoji. The muafidar will remain in possession of the land so long as he performs the worship. If he fails to perform the worship, the landlord will be entitled to hand over the land to somebody else; so that the puja may be performed.
4. The question that arises, on a true construction of this document, is whether the grant is resumable at the will of the proprietor within the meaning of Clause (b), Section 154, U.P. Tenancy Act 1901, or whether the grant falls under Clause (c) of the same section of the same Act.
5. Having regard to the nature of the grant, it was not at all likely that the proprietor making the grant, should ever have thought of resuming the land by not requiring the worship of the deity to continue. As to the actual language that is used, there is no provision for resumption at all. On the other hand, the idea is that the worship is to continue. Only, the land might be transferred from the possession of the holder to another if the former failed to perform the services. It is not with respect to every rent-free grant that the law permits resumption. Three different cases are defined. One is where the rent-free grant is held at the pleasure of the grantor. The argument of the learned counsel for the respondent, if acceded to, would bring the case really within Clause (a). He, however, contends that the case falls within Clause (b) which is defined as:
for performance of some specific service, religious or secular, which the proprietor no longer requires.
6. The argument is that whenever there is a grant for service, it must depend on the will of the proprietor whether the service will continue or not. If that were so, it would have been enough for the legislature to say as to the grant:
for performance of some specific service, religious or secular;
and the words 'which the proprietor no longer requires' would be entirely unnecessary. There may be services the termination of which was not made dependent on the will or requirement of the proprietor. The present grant is like that. As we have already said, the proprietor could never have contemplated that he was looking at any distant time to terminate the services. In our opinion, the case falls within Clause (C) which runs as follows:
Conditionally or for a term, and the condition is broken or the terms expires.
and the 'condition of holding the grant' was the performance of the puja. So long as the holder was prepared to perform the puja the condition was performed and the grant stood unresumable.
7. In the result, we hold that the rent-free grant is not resumable under Clause (b), Section 154, U.P. Tenancy Act 1901, that it falls within Clause (c) and further that the condition has not been broken.
8. We allow the appeal, set aside the decree of this Court and that of the lower appellate Court and restore the decree of the Court of first instance. The appellant will have his costs throughout.