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C. Periaswami Goundan and ors. Vs. Sundaresa Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1965SC516; [1964]8SCR347
ActsMadras Hindu Religious Endowments (Amendment) Act, 1934 - Sections 44-B-11
AppellantC. Periaswami Goundan and ors.
RespondentSundaresa Iyer and ors.
Cases Referred(in) Venkatadri v. Seshacharlu I.L.R.
Excerpt:
trust and societies - suit by trustee of temple to recover property of temple - section 44-b-11 of madras hindu religious endowments (amendment) act, 1934 - trustees of temple (plaintiff) filed suit for recovery of plaint-scheduled properties from defendants who are 'archakas' and their alienees - alleges that said properties were properties of deity and defendant had no right in properties - plaintiff also claimed mesne profits for a period of three years prior to suit - defendants contented that interest in property validity alienated in their favour - whether grants made to three temples consisted of both 'varams' or 'melvaram' alone - subordinate judge held that grants to deities comprised of both 'varams' - alienations by 'archakas' prior to 16.05.1931 were binding on trustees -.....subba rao, j.1. 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. 2. o.s. no. 183 of 1945 relates to properties claimed on behalf of srichowleswaraswami temple. periaswami goundar and samana goundar, the plaintiffsin the said suit, are the trustees of the said temple. they filed the suit forthe recovery of the plaint-scheduled properties from the defendants who are thearchakas and the alienees from them on the ground that the said properties werethe properties of the deity and that the defendants had no right therein. theyalso claimed mesne profits for a period of 3 years prior to the suit. thedefendants filed a written-statement admitting the claim of the diety to themelvaram.....
Judgment:

Subba Rao, J.

1. 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.

2. O.S. No. 183 of 1945 relates to properties claimed on behalf of SriChowleswaraswami temple. Periaswami Goundar and Samana Goundar, the plaintiffsin the said suit, are the trustees of the said temple. They filed the suit forthe recovery of the plaint-scheduled properties from the defendants who are thearchakas and the alienees from them on the ground that the said properties werethe properties of the deity and that the defendants had no right therein. Theyalso claimed mesne profits for a period of 3 years prior to the suit. Thedefendants filed a written-statement admitting the claim of the diety to themelvaram interest in the properties but claimed that the archakas owned thekudivaram therein and that some of the said properties were validly transferredto the alienees

3. O.S. No. 184 of 1945 was filed in the said Court by the trustees of SriPongali Amman temple situated in the village of Vengambur for the recovery ofthe properties mentioned in the schedule attached to the plaint. Thedefendants, who are the archakas and alienees from them, inter alia, pleadedthat only melvaram in the said properties was granted to the diety and that thearchakas owned the kudivaram therein and that they had validly alienated theirinterest in the said properties in favour of the alienees.

4. O.S. No. 185 of 1945 was filed in the same Court by the trustees of SriVaradaraja Perumal temple situated in Vengambur village. The plaintiffs soughtto recover the properties mentioned in the schedule annexed to the plaint fromthe archakas and the alienees from them on the same grounds and the defendantsraised similar pleas. It is not necessary to mention other defences raised inthe written statements filed in the three suits as nothing turns upon them inthese appeals.

5. 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 ofboth the varams or melvaram alone.

6. 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 allthe 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 thealienations made subsequent to that date were liable to be set aside. In theresult the learned Subordinate Judge gave a decree in each of the suits forpossession of the plaint-schedule properties except those covered by thealienations effected before May 16, 1931. He also decreed mesne profits to theplaintiffs for a period of 3 years prior to the suits and also subsequentprofits from the date of the suits to the date of delivery of possession at therate fixed by him. The defendants in the said suits preferred appeals to theHigh Court of Madras, being Appeals Nos. 259, 260 and 385 of 1947. The saidappeals were heard by a Division Bench of the said High Court, consisting ofSatyanarayana Rao and Rajagopalan, JJ. The High Court agreed with the trialcourt on the finding relating to the nature of the grants to the temples, thatis 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, thoughthere was no pleading, no issue and no contention in the trial Court, held thatthe archakas were entitled to have a portion of the said properties allotted tothem forwards their remuneration for the services to the temples and gave adecree directing the division of the said properties into two halves andputting the archakas in possession of one half. They did not disturb the findingof the learned Subordinate Judge in regard to the alienations, that is theymaintained 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 Courtquestioning the correctness of the decree of the High Court in so far as itwent against them. Against the decree in A.S. No. 260 of 1947 no appeal wasfiled by the archakas, but the trustees preferred an appeal questioning thatpart of the decree directing a part of the properties to be put in possessionof the archakas.

8. Mr. Desai and Mr. Tatachari, appearing for the archakas in the differentappeals, contended that the Courts below, having regard to the consistent and continuousconduct of enjoyment as absolute owners of the properties by the archakasspread over a long period of time, should have invoked the doctrine of lostgrant particularly when there was no clear and convincing evidence of the termsof the grant. Alternatively, they argued that the Courts should have held, on afair construction of the recitals found in the inam statements and the inamregister, that only melvaram was granted to the deity.

9. Mr. Viswanatha Sastri, learned counsel for the trustees, contested thisposition. He would say that there is no scope for invoking the doctrine of lostgrant as the recitals in the inam register and the inam statement, which are ofgreat evidentiary value, conclusively establish that both the varams were grantedto the deity and that all the documents, or most of them, disclosing theconduct of the archakas would support the conclusion that both the varams wereso granted to the deity.

10. At the outset it would be convenient to notice briefly the scope of thedoctrine of lost grant, as the learned counsel for the appellants have stronglyrelied upon it. The doctrine of lost grant with its limitations has beensuccinctly explained by the Judicial Committee in Sankaranarayana Pillayan v.H.R.E. Board, Madras I.L.R. 1948 Mad. 585. The temple in that casehad 4 kattalais. Though the temple had a general trustee, each of the kattalaiswas in the charge of a special trustee or trustees. In regard to one of thekattalais after meeting all the expenses there remained a surplus which thetrustees claimed for their own benefit and in fact they were utilizing thesurplus for the benefit of their families. It was contended by the appellantsthat they were the owners of the suit properties, which were subject only to acharge in favour of the kattalai for the performance of the worship accordingto the prescribed scale. The Judicial Committee, after noticing the earlierdecisions, observed :-

'The presumption, it was stated, of an origin insome lawful title which the Courts have so often readily made in order tosupport possessory rights long and quietly enjoyed, arises where no actualproof of title is forthcoming, and the rule has to be resorted to because ofthe failure of actual evidence. In the present case, where there is ample andconvincing proof of the nature of the grant, the object of the endowment andthe capacity of the persons claiming the user and enjoyment, the rule canhardly have any application.'

11. In the result the Judicial Committee held that the properties weregranted only to the deity and that the trustees had no claim to any surplusincome. The said principle has been accepted by this Court in BudduSatyanarayana v. Konduru Venkatapayya : [1953]4SCR1001 . There aquestion similar to that now raised was considered. The archakas claimed,relying upon the doctrine of lost grant, that under the original inam grantonly 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 apresumption of an origin in some lawful title may in certain circumstances bemade to support possessory rights long and quietly enjoyed where no actualproof of title is forthcoming but it is equally well established that thatpresumption cannot be made where there is sufficient evidence and convincingproof of the nature of the grant and the persons to whom it was made.'

12. The basis of this doctrine is clearly brought out by two judgments ofthe Judicial Committee. Lord Buck-master, delivering the judgment in MaginiramSitaram v. Kasturbhai Manibhai [1921] L.R. 49 IndAp 54, observed :

'At the lapse of 100 years, when every party to theoriginal transaction has passed away, and it becomes completely impossible toascertain what were the circumstances which caused the original grant to bemade, it is only following the policy which the Courts always adopt, ofsecuring as far as possible quiet possession to people who are in apparentlawful holding of an estate, to assume that the grant was lawfully and notunlawfully made.'

13. Viscount Sumner in Mohamed Muzafar Ali Musavi v. Jabeda Khatun 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 possessoryrights, long and quietly enjoyed, where no actual proof of title isforthcoming, is one which is not a mere branch of the law of evidence. It isresorted to because of the failure of actual evidence.'

14. It is, therefore, clear that said principle can only be invoked wherethere is no acceptable evidence of the terms of the grant.

15. In these appeals the trustees filed copies of the relevant extracts ofthe inam register and the statements filed by the ancestors of the archakasduring the inam enquiry in support of the contention that both the varams weregranted to the deity. The evidentiary value of the recitals in the inam registerhas been emphasized by the Judicial Committee in more than one decision. InArunachalam Chetti v. Venkata Chalapathi Guruswamigal I.L.R. [1920] Mad.253, the Judicial Committee expressed its view on the evidentiary of therecitals in inam register thus :

'It is true that the making of this register wasfor 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 greatact of state and its preparation and contents were the subject of muchconsideration under elaborately detailed reports and minutes. It is to beremembered that the Inam Commissioners, through their officials, made enquiryon the spot, heard evidence and examined documents, and, with regard to eachindividual property, the Government was put in possession not only of theconclusion come to as to whether the land was tax free, but of a statement ofthe history and tenure of the property itself. While their Lordships do notdoubt that such a report would not displace actual and authentic evidence inindividual cases, yet the Board when such is not available, cannot fail toattach the utmost importance, as part of the history of the property, to theinformation set forth in the inam register.'

16. In the latest decision of the Judicial Committee reported inSankaranayana Pillayan's case I.L.R. [1948] Mad. 585, it reiterated the sameposition when it said :

'The question arose in a recent case before thisBoard with reference to a Madras inam [see Secretary of State for India v.Vidhya Thirta Swamigal I.L.R. [1942] Mad. 893, where it was heldthat the title deeds and the entries in the inam register are evidence of thetrue intent and effect of the transaction and of the character of the rightwhich was being recognized and continued. The entries in the inam register andthe description of the inamdar therein were accepted as indications of thenature and quantum of the right and the interest created in the land.'

17. This view of the Judicial Committee has been accepted and applied by theMadras High Court in many decisions when it was called upon to decide on theconflicting claims of a trustee and a archaka to the properties dealt with inthe inam registers.

18. 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 beforethe Inam Commissioner. It is of the year 1862. Ex. P-3 is an extract of theinam register. As observed by the Judicial Committee, the entries made in thesaid register are the result of an elaborate enquiry based upon oral evidence,on the spot enquiry and scrutiny of available accounts and records. The inamstatement is only one of the pieces of evidence which the Inam Commissionermight have taken into consideration in compiling the inam register. Therecitals in the statement must, therefore, give place to the recitals in theinam 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 thecommon case i.e., that it is the case of both the archakas and the trusteesthat Ex. P-3 deals only with the property that was given to the deity. But thedispute is as regards the extent of the interest in the property that was givento the deity. Was it only the melvaram in the said property that was granted tothe deity or was it that both the varams therein were granted to the deity. Nowlet 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 saidmajor 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 thename 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 smallextent which is a garden the rest is dry land. These details are more consistentwith the grant being of both the varams than being of mere melvaram. It it isof melvaram alone, the quality of the field is quite irrelevant. Sub-heads 4, 5and 6 show that the extent is about 18 acres and 99 cents and the assessment isRs. 24-14-5. These recitals leave the impression that the land was a dry landbearing a small assessment of Rs. 24-14-5 and the income therefrom could nothave been appreciable in those days. The second main head is 'description,tenure and documents in support of the inam'. The entries under thevarious columns under this head establish that the dry lands bearing anassessment of Rs. 24-14-5 described in cols. 3, 4, 5 and 6 were granted asDevadayam to the deity Pongali Amman permanently by Maduraiyar Paligar ofMadura. The date of the grant is not known; but even in the accounts of 1209 F.the name of the deity was entered as the grantee. The third major head is'name and relationship of the original grantee and of subsequent andpresent heirs - length of possession'. In Cols. 13 and 15 the name of thedeity alone is given. In Col. 16 under the heading 'name and age' andin Col. 17 under the heading 'place of residence' only the name ofthe deity is given. Below the name of the deity the name of the pujari'Pujari Muttandi, age 45' is given. In Cols. 18 and 19 under theheading 'relation to original grantee or subsequent registeredholders' and 'surviving heirs of the present incumbent' no entryis made. Obviously no entries are made under these sub-heads, as the deitycannot have relations. The mention of Pujari Muttandi in the context of otherentries indicates that he was in charge of the temple. If his name wasmentioned because he had some interest in the land, the other suitable entriesin 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 themelvaram. If the document was concerned only with the melvaram interest,strictly there was no place for the archaka in the document, for he had nointerest therein. His name was mentioned only as he was the person who was inde facto management of the properties of the deity. In Col. 21 under theheading 'Deputy Collector's opinion and recommendation', the entry is'To be confirmed permanetly 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 isconfirmed to the pagoda. A reasonable interpretation of the recitals in thisdocument leads to the only conclusion that Inam Commissioner was dealing withthe 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 anyothers were kudivaramdars. But it is said that Ex. P-2, the inam statement,filed by the then archakas would establish that what was granted was only themelvaram. There, in Col. 2 under the head 'Name of the inamdar entered indowle and names of the present enjoyer' the following entry is found :

'Pongaliamman poosari Kuppaiyandi Muthuveeran asper paimash entry. For fields Nos. 595 and 597 no poosari's name is mentioned.Present (enjoyer) Pongaliamman poosari Muthandi.'

19. It is said that pujari is shown as the enjoyer and, therefore, the deityhas no interest in the enjoyment of the land. The deity was obviouslyrepresented by the pujari who was the de facto trustee. He was in possession ofthe property in his capacity as the de facto trustee. In those circumstances ifthe pujari of the temple is described as an enjoyer, it can only mean that hewas in possession of the land on behalf of the temple. Whatever ambiguity theremight be in the said recital it is dispelled by the entry in Col. 12 under thehead 'Particulars of present enjoyment', namely 'By directlycultivating this land selling the produce derived therefrom and applying thesale proceed to the service of the deity. I and my agnates have been performingpooja and enjoying the said land according to the conditions of thegrant'. This entry is couched in clear and unambiguous terms. It describesthe nature of the enjoyment of the land by the archaka; it clearly says that hewas cultivating the land, selling the produce and from the sale proceeds he wasdoing the services to the deity in accordance with the terms of the grant. Ifthe deity was entitled only to the melvaram, this recital is inconsistent withit. The recital indicates that the entire land was the subject-matter of thegrant in favour of the deity and that the produce from that land was utilizedfor 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 orjodigai, 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 indicatesthat the same amount was the income derived from the inam and, therefore whatwas granted in inam could have been only the assessment i.e., Rs. 24-14-5. Thisargument is farfetched and based on a slender foundation. One of the mainobjects of the inam enquiry was to ascertain whether the alienated lands werefree of tax or not. The archaka who was in possession of the land on behalf ofthe deity had to give information as regards the tax payable in respect of theland in his possession. In that context the expression 'income derivedfrom the manibam' can only mean the assessment fixed on the land. Afterstating that full assessment was only Rs. 24-14-5 the archaka stated that hewas 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 thesaid statement and those found in Ex. P-3. A similar argument was advanced beforethis Court in Buddu Satyanarayana's case : [1953]4SCR1001 and was rejected.Das, J., observed at p. 1006 thus :

'Apart from these points of distinction thedecision relied on by the learned Attorney-General appears to us to be ofdoubtful authority. As will appear from the passages quoted above, the decisionrested mainly, if not entirely, on the fact that the amount of assessment andthe amount of income were the same and the conclusion was drawn that the Inamgrant comprised only of the revenue assessment, i.e., of melvaram rights. Weare unable to follow the reasoning.'

20. We, therefore, hold that, from the recitals in the said two documents,what was granted to the deity was of both the varams.

21. Learned counsel for the archakas relied upon the long possession andenjoyment of the suit lands by the archakas and their ancestors in support oftheir contention that the melvaram alone could have been granted to the deity.Long enjoyment is also consistent with an arrangement that might have beenentered into between the grantor and the then functioning archaka or archakashaving regard to the conditions prevailing then. The lands granted werecomparatively of small extent and they were dry lands. In those days the incomefrom the said lands must have been very insignificant. There was no trustee forthe temple. In those circumstances it is more likely that the grantor wouldhave put the land in the possession of the archaka so that he might, from andout of the produce from the land, maintain the temple, perform the puja andmeet the expenditure connected with the puja and also pay himself theremuneration for his services to the temple. That was a convenient arrangementwhich was adopted in many of the small temples in that part of the country. Thispractice was recorded with clarity by the Madras High Court in Narayanamurthiv. Achaya Sastrulu A.I.R. 1925 Mad. 411. In dealing with a similarargument the learned Judge observed :

'The evidence of user andenjoyment, however long uninterrupted and unquestioned, would be evidence ofthe grant only in the absence of any reliable or cogent evidence with regard tothe terms of the grant itself or in the case of any ambiguity in the grant. Itseems to be clear that almost very recently the suit lands yielded only justwhat was sufficient for nitya naivedyam or the daily worship. No doubt in sucha state of things not only the persons who established the temples and made theendowments but succeeding generations of worshippers would have allowed thearchakas to cultivate the lands and take the income performing the puja as itwas obviously the most convenient mode of arranging for the worship of thedeities and the payment of remuneration of the archaka service.'

'But when the incomeaccruing from the lands came to be considerable and the archakas, by reason ofold habits and following their forefathers, claimed the lands and surplusprofits therefrom to be their own, it was only natural that the worshippersshould take steps to secure the surplus income for the institutions.'

22. These observations are very apposite and they clearly describe thecircumstances under which archakas of the temples were allowed to be inpossession of the temple lands. If that was the situation under which thearchakas came into possession of the lands, they were certainly in the positionof de facto trustees and they could not by mortgaging or otherwise alienatingthe properties claim any rights in derogation of the title of the deity. Indeedthe documents on which the learned counsel relied contain clear and unambiguousadmission on the part of the archakas that the land itself was the property ofthe deity. Exs. P-12, P-13, P-14 and P-15 are copies of mortgages executed bythe archakas. Under these documents the land in their possession was mortgagedand it was described as paditharam Manyam. They also disclosed that thepaditharam paddy directed to be paid to the temple was more than the kistpayable thereon to the Government. In the prior proceedings i.e., applicationspreferred by the archakas for declaring the temples as excepted ones, there wasno claim that the melvaram alone was granted to the deity. In other proceedingsthe archakas claimed that the lands were service inams, but they did not comeforward with the present plea that melvaram only was granted to the deity.Further, pattas for the suit lands were transferred without any objection ofthe archakas in the name of the deities in 1939 and the archakas alsocontribution to the Madras Hindu Religious Endowments Board on the basis thatboth the varams belonged to the deity. The conduct of the archakas, therefore,is consistent with the recitals in the inam register, namely, that what wasgranted to the deity was the land i.e., both the varams, and that they had beenput in possession and enjoyment of the said land in their capacity as archakasand de facto trustees.

23. Learned counsel for the appellants relied upon and an order made byA.R.C. Westlake, Collector of Coimbatore, on April 14, 1941, wherein he heldthat only melvaram was granted to the deity. That order came to be made underthe following circumstances. The trustees appointed by the Coimbatore DistrictTemple Committee filed an application before the Revenue Division Officer unders. 44-B-11(a) of the Madras Hindu Religious Endowments (Amendment) Act, 1934,for a declaration that the alienations of portions of inam land attached to thetemple were null and void and for resumption and regrant of the same to thedeity. One of the issues in the application was whether the inam comprisedmelvaram or both melvaram and Kudivaram. The Revenue Division Office held thatthe inam comprised both the varams. On appeal, the Collector came to thecontrary conclusion. But a perusal of the order shows that his conclusion wasbased upon pure surmises. The Collector did not refer to any document orevidence for his conclusion. The trustees filed a suit in the Court of theSubordinate Judge, Coimbatore, for a declaration that the inam grant in favourof the plaint temple comprised both the varams. The learned Subordinate Judgeheld that s. 44-B of the Act had no application as the grant was to the deityand was not a service inam. The result of this litigation was that there was nofinal decision on the question whether the grant was of both the varams or onlyof the melvaram. These proceedings cannot, therefore, be of any evidentiaryvalue in this case. On a consideration of the entire evidence we agree with theconclusion arrived at by the High Court that the grant to the deity comprisedboth the varams in the suit lands.

24. Now coming to the appeals relating to Chowleswaraswami temple, thefactual and legal position is exactly the same as in the case of Pongaliammantemple. Ex. P-2 is the statement made before the Inam Commissioner by the thenarchaka and Ex. P-3 is the extract from the Inam register. Under the relevantentries in the inam register, survey numbers, extent, quality and theassessment of the subject-matter of the grant are given. The land is describedas Devadayam and is stated to have been granted for the support of the pagodaof Chowleswaraswami. The nature of the grant is described as permanent. Thedate of the grant is not known. The grantor's name is given as MaduraiyarPaligar of Madura. The name of the original grantee is given asChowleswaraswami. The grant of the land described earlier is confirmedpermanently to the pagoda as long as it is well kept subject to the existingjodi 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 therelationship of the present owner with the previous owners is expected to berecorded are left blank for the obvious reason that the said columns areirrelevant in the case of a deity. The archaka's name in addition to the deityis mentioned as he was in possession of the land in his capacity as de factotrustee. The deity must necessarily have to be represented by somebody and thathe can only be the stanika who was managing the temple and its properties. Therelevant entries in the inam register do not countenance any contention thatthe melvaram interest only in the land was granted and that was confirmed tothe deity. If the melvaram was granted or confirmed, the recital would havebeen different. The corresponding inam statement is Ex. P-2. The entries arepractically similar to those found in Ex. P-2 relating to Pongaliamman templewith some slight variations. Col. 2 makes a clear distinction between ownershipof the land and enjoyment. The owner is shown as Chowleswaraswami and the'present' enjoyer is shown as Chowleswaraswami's stanika. The natureof the enjoyment is described in col. 2 thus :

'The said lands are leased out for varamcultivation and I cultivate the same myself some times and the income (masul)therefrom is enjoyed by me and co-sharers (Pangali) and used for SwamiViniyogam.'

25. It is manifest from this recital that the land was the subject-matter ofthe grant and the income therefrom was derived either by direct cultivation orby leasing out the same, and the said income was enjoyed by the archaka andused for viniyogam. The point to be noted is that the predecessor-in-interestto the present archaka admitted that the produce from the land was utilized forthe services of the deity. The said admission is inconsistent with theallegation that the grant was only of melvaram. The entries in col. 13 aresimilar to those contained in the corresponding Ex. P-2 relating toPongaliamman temple, and, for reasons already given, they do not support thecontention that the assessment of Rs. 74-1-5 was only granted to the deity.

26. A combined reading of these two documents leads to the only conclusionthat both the varams were granted to the deity. Just as in the case ofPongaliamman temple so in the case of Chowleswaraswami temple, the subsequentconduct of the archakas belie their assertion that only melvaram interest inthe land was granted to the deity. Exs. D-1 of 1867, D-2 of 1868, D-3 of 1870and D-4 of 1883 are some of the mortgages executed by the archakas ofChowleswaraswami temple. Exs. D-5, D-6 and D-7 are sales. In all thesedocuments the property is described as Chowleswaraswami manyam. If really thekudivaram belonged to the archakas, they would not have described the land theywere alienating as Chowleswaraswami manyam. The description of the property asthat of the deity is consistent with the title of kudivaram also being in thedeity. Further, as in the other case, the pattas were transferred in the nameof the deity in 1939, the contributions were paid to the Hindu ReligiousEndowments Board on the basis that the entire interest in the lands belonged tothe deity and that in other proceedings the archakas's case was not that thegrant to the deity was only of the melvaram but the lands were service inamlands. Though the archakas dealt with the properties by mortgaging or otherwisealienating them they never denied the title of the deity. For the foregoingreasons we hold that even in the case of Chowleswaraswami temple the originalgrant made to the deity comprised both the varams.

27. In regard to Sri Varadaraja Perumal temple, no appeal was filed by thearchakas and they allowed the judgment of the High Court in regard to the titleto become final. Nothing, therefore, need be said on the question of title ofthe land in respect of this temple.

28. Coming to the cross-appeals filed by the trustees against that part ofthe decree of the High Court apportioning the property of the deity between thedeity and the archakas, the question raised in whether the High Court, havingheld that the title to the suit property vested in the deity, had jurisdictionto compel the trustees of the temples to put the archakas in possession ofspecified extent of property towards their remuneration. The High Courtobserved thus :

'On these findings, it is no doubt true that thedecree in favour of the plaintiffs for possession of the properties on behalfof the deity has to be upheld subject to the consideration set forthbelow.'

29. Then it proceeded to consider whether any allocation of land should bemade between the archakas and the trustees. After noticing the relevantdecisions on the subject, it observed thus :

'These decisions are practically uniform except forthe decisions..... (in) A.S. No. 237 of 1950 [Brahmyya v. Rajeswaraswami temple : AIR1953Mad580 ] and.......... (in) Venkatadri v. Seshacharlu I.L.R. 1948 Mad. 46 and have upheld the allocation of lands between the archakas and thetrustees, the proportion however varying with the extent of the lands and theamount of the income. None of the Judges were of the opinion that thearrangement should be a permanent and an unalterable one and it must naturallybe subject to revision or alteration according to the circumstances of the caseat the instance not only of the trustees but also at the instance of thearchakas, if it was found that the allocation was working to the detriment ofeither the archakas or of the temple.'

30. It concluded :

'We think, therefore, in these cases, the bestarrangement would be to allocate half the lands in each of the suits for theremuneration of the archakas, to be divided equally, having regard to the wetand dry extents, and leave the remaining half to the trustees, who have to meetthe cost of the daily worship and accumulate the surplus in their hands as itbelongs to the deity.'

31. On principle, in our view, the conclusion arrived at by the learnedJudges of the High Court is unsupportable. The suits were based on title andthe relief asked for was the eviction of the archakas from the suit property asthey, according to the plaintiffs, had no title to remain in possession. Thearchakas raised the plea that the title of the deity was confined only to melvaramin the plaint-schedule lands and that they had title to the kudivaram. Both thecourts confirmed the title of the deity to both the interests and negatived thetitle of the defendant-archakas. In the circumstances the Court has no optionbut to deliver possession to the plaintiffs who had established their title tosuit properties. In a suit for framing a scheme for a temple a court may in anappropriate case put the archaka in possession of a portion of the temple landstowards his remuneration for services to the temple; but these are not suitsfor framing a scheme. That apart, there is absolutely no material either in thepleadings or in the evidence to make any such apportionment, for the allotmentof a particular share to the archaka would depend upon the total income fromthe lands, the value of the articles required for the worship, the amount ofreasonable remuneration intended to be provided and other similarcircumstances. An allotment cannot possibly be made on the basis of allocationsmade in the circumstances and facts peculiar to other cases. Indeed, this Courthas already expressed a clear opinion on this aspect of the case in BudduSuryanarayana's case : [1953]4SCR1001 . Therein, Das, J., said at p. 1008thus :

'In a proceeding for the framing of a schemerelating to a temple it may be permissible to take into account the claims,moral if not legal, of the Archakas and to make some provision for protectingtheir rights, but those considerations appear to us to be entirely out of placein a suit for ejectment on proof of title.'

32. With respect we entirely agree with the said observations. It followsthat the High Court went wrong in making an allocation of the lands between thetrustees and the archakas in a suit for ejectment.

33. Learned counsel for the archakas made an impassioned appeal that weshould give a direction to the authorities concerned to make an apportionmentof the properties on the lines suggested by the High Court, having regard tothe long enjoyment of the temple lands by the archakas. Long enjoyment of thetemple lands by the archakas is not a peculiar feature of this case. Theauthorities concerned have made suitable arrangements for remuneration in thecase of other temples and we have no doubt that they would make a reasonableprovision for the archakas in the present case also for their remuneration inaccordance with law.

34. In the result, Civil Appeals Nos. 648 and 650 of 1960 filed by thetrustees are allowed but, in the circumstances, without costs. Civil Appeal No.649 of 1960 filed by the trustees is also allowed without costs except asagainst the 14th respondent. The said appeal against the 14th respondent iswithdrawn on the ground that his interest as a mortgagee is not now subsistingand the said appeal against the 14th respondent is dismissed as withdrawn but,in the circumstances, without costs. Civil Appeals Nos. 651 and 652 of 1960filed by the archakas are dismissed with costs. On hearing fee.

35. Ordered accordingly.


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