1. This is an appeal from the decree of the learned Additional Subordinate Judge of Coimbatore dismissing with costs a suit by the trustee of the Sri Amaneswaraswami temple for a declaration that the inam which has been resumed by the Government comprises both the melwaram and kudiwaram right in the land. The suit was brought under the provisions of Section 44-B of the Madras Hindu Religious Endowments Act. It was resisted by the defendants, to whom the inam was alienated in 1903 by a previous trustee, on the ground that they had kudiwaram right. They pleaded that the resumption was ultra vires as Section 44-B could not in any circumstances apply to an inam which had been granted not to a person whose duty it was to perform services on behalf of a temple but to the deity enshrined in the temple itself. The learned Additional Subordinate Judge upheld this view of the construction of Section 44-B and dismissed the suit.
2. It has been urged for the appellant here that the respondents ought not to have been allowed to put forward this case in the Court of the learned Additional Subordinate Judge as they had not taken any steps to set aside the decision of the Sub-Collector confirmed on appeal by the Collector in 1941 to resume the inam. The answer to this is simple. The order of the District Collector will become final only if any party aggrieved by that order does not move the Civil Court in time. The resumption was of the melwaram alone in this case and that is why the appellant has brought the present suit. The present respondents are in no sense aggrieved by that order. There was, therefore, no obligation upon them to file any suit and we cannot hold that as against them the order has become final.
3. We therefore proceed to consider whether the construction of Section 44-B adopted by the learned Additional Subordinate Judge and supported in argument by the learned Counsel for the respondents before us is correct. The learned Judge follows an unreported decision of a Bench of this Court given in Chennimalai Goundan and Anr. v. Lakshmidevi Ammal 35 Law Times Reports 255. That was a case in which there was an alienation, by archakas attached to a temple, of certain property, and an application by the trustee of the temple to the Revenue Divisional Officer to resume the inam under Section 44-B. Resumption was carried through and 'then the alienees brought a suit for a declaration that the resumption was invalid this Court held that the resumption was invalid. In so holding ft is stated on page 2 of the judgment:
There can be no doubt that the lands were granted to the deity of the temple. The entries in the inam register make this quite clear. It is equally clear that Section 44-B of the Act does not entitle the revenue authorities to resume land held under such a grant as we have here.
This statement is certainly very wide and comprehensive, and taken by itself would justify the learned Subordinate Judge in accepting the point of view that Section 44-B cannot apply to an inam granted to the deity itself, but it is clearly obiter dictum on the facts of the case with which this Court was then dealing, for as is clear there was no alienation by the trustee of the temple but only by archakas who, it was found, had no right whatever to the property. On page 3 the learned Judges point out:
The grantee of these lands is, as we have pointed out, the deity and there has been no alienation by the trustee.
It was clear therefore that without any discussion of the particular argument now addressed to us in the circumstances of the case before this Court on the previous occasion, Section 44-B could not apply because the reason why the resumption was made was an alienation which could not possibly fall within Section 44-B (a)(a)(i) as it was not the holder of the inam which had made the alienation but only someone who had no right to the property whatever. We do not consider, therefore, that we are bound by the decision upon which learned Counsel for the respondents relies, and with great respect we may point out that the pasrage from the judgment which we have quoted (page 2) is given without any kind of discussion of any possible alternative view. It may very well be that in view of the other ground for holding that the revenue authorities could not have ordered resumption in that case the advocates engaged in the appeal before this Court did not trouble to argue or contest the proposition that Section 44-B of the Act could in no circumstances apply to a devadayam inam.
4. The matter, however, must be now considered by us because it vitally affects the issue of the present appeal. In our opinion the language of Section 44-B (1) is wide enough to govern inams both service inams and devadayams. The language is:
Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple.
It cannot be denied that the purpose for which the inam in the present case was granted was that daily worship should be carried on in the temple. It seems to us that we cannot restrict the expression ' service connected with a math or temple ' to service performed by the holder of a service inam. It is a comprehensive expression implying only that the reason for the grant was that something connected with the maintenance of temple services should be inaugurated or provided for. The object of the section clearly is that if there has been an alienation of such an inam certain powers should be exercised in order that the property should be restored to the temple and the service intended to be provided for should continue. Then, powers are given to the Collector under Sub-section (2)(a) to resume the inam in certain circumstances. One of these circumstances is 'that the holder of such inam... has made an exchange, gift, sale or mortgage of the same or any portion thereof or has granted a lease of the same or any portion thereof for a term exceeding five years ' and another:
that the holder of such inam has failed to perform or make the necessary arrangements for performing in accordance with the custom or usage of such math or temple, the charity or service for performing which the inam has been made.
Now it is argued, and we think rightly, for the respondents that the second of the sub-clauses can relate only to the holder of a service inam. It is only such a holder who can fail to perform the service for which the inam was granted, but it does not seem to us that because the expression 'holder of such inam ' must necessarily, because of the wording of the remainder of that particular clause, be confined to the holder of a service inam, the same restriction should be made in Sub-clause (i). That restriction can be made, in our opinion, only if it is legally impossible for the deity ever to alienate any of the temple property. Of course, in the physical sense it is impossible, but the deity is represented by the trustee. It cannot be argued that if the trustee acting on behalf of the deity had granted a lease of this inam for a period not exceeding five years that action would not be the action of the holder of the inam, that is, the deity and would not be perfectly legal. It seems to us, therefore, that there is no reason why we should not hold that when the trustee of a temple alienates an inam he is acting as the agent of the holder of the inam, that is, the deity itself, and so the provisions of Section 44-B (2)(a)(i) are brought into action. In our opinion, therefore, the action of the Sub-Collector confirmed by the Collector in this case was within his powers under Section 44-B. The suit by the appellant clearly lies for a declaration as to whether the inam comprises both melwaram and kudiwaram. The decree of the learned Subordinate Judge must be set aside and the suit remanded for disposal on the merits according to law.
5. Costs will abide the event. The court-fee on the appeal will be refunded to the appellant.