1. This appeal is by the respondents in I.A. No. 1493 f ig43 in O.S. No. 17 of 1923 on the file of the Subordinate Judge's Court, Bapatla. That was a suit for framing a scheme for the administration of the temple of Sri Chennakesavaswami Varu of Santhanuthalapadu village. By the decree in that suit a scheme was framed, the material clause of which for the purpose of this appeal is Clause 8 which runs as follows:
The trust properties in the enjoyment of the service holders of the suit temple shall be continued in the possession of the respective service holders so long as they are in office rendering approved and satisfactory service. The various service holders shall be subject to the control of the Board of the trustees appointed under the scheme but are liable to be dismissed from office only by the Court on application there to by the trustees and on proof of misconduct and on such dismissal the properties in their possession shall revert to the trust.
2. Defendants 27 to 28 in the suit were certain devadasi service holders. At the time when the decree was passed, defendants 27 to 34 and 36 to 38 and their vakils were absent, while the 35th defendant never made his appearance during the suit. The decree was in terms of a memorandum of compromise signed by the plaintiffs and several of the other defendants. The decree recites that some of the defendants alone were consenting parties to the scheme which was being framed. It also mentions that defendants 27 to 38 were not parties to the memorandum of compromise. We are unable to accept the argument addressed on behalf of the appellants in the above civil miscellaneous appeal who represent the interests of defendants 27 to 38 in the suit that the decree and in particular Clause (8) thereof is not binding on them because they had not consented to such a decree being passed. So far as these defendants were concerned, it was an ex parte decree and there is no reason therefore why it should not be enforceable against them.
3. In respect of devadasi service lands, the Madras Legislature passed Act V of 1929. The preamble to that Act recites that
It is expedient to put an end to the present practice of dedication of young girls as devadasis for service in Hindu temples in the Presidency of Madras and that the enfranchisement or freeing of lands held by them on condition of service in the said temples from such condition will be effective steps in doing so.
4. The Act then proceeded to add as Section 44-A to the Madras Hindu Religious Endowments Act certain provisions for the enfranchisement or freeing of lands held by devadasis on condition of service in a temple. It is unnecessary to deal in detail with the provisions of Section 44-A. Section 44-A (1) deals with enfranchisement of lands granted or continued by the Government as remuneration for devadasi service or assignments of land revenue so granted or continued. Sub-section (2) deals with cases where the remuneration for devadasis' service consists in whole or in part of lands or of produce of lands not falling under Sub-section (1). The former class are to be enfranchised. The procedure laid down in respect of the latter class provides for the determination of the amount of rent payable on the lands or the produce in question, by the Collector acting under the direction of the local Government. The consequences of the enfranchisement of the lands or the assignments of revenue coming under Sub-section (1) or of the freeing from services of the lands or the produce of lands coming under Sub-section (2) are laid down in the later sub-sections. It is unnecessary to refer to them at any length. We must, however, set out Sub-section (5) on which a great deal of the argument in this case turned:
No obligation to render any service relating to any temple to which any devadasi may be subject by reason of any grant of land or assignment of land revenue or produce derived from land, shall be enforceable on such land, assignment or produce being enfranchised or freed, as the case may be, in the manner hereinbefore provided.
5. It would appear that these devadasi service holders moved the Tahsildar of Ongole within whose jurisdiction their lands lay for enfranchisement on the footing that the lands held by them were inams coming under Sub-section (1) of Section 44-A. The Tahsildar made a reference to the Madras Hindu Religious Endowments Board and the Board would seem to have held that the lands in question were not inams coming under Sub-section (1) of Section 44-A. After the receipt of the opinion of the Madras Hindu Religious Endowments Board the Tahsildar passed an order on the 29th July, 1943, that Section 44-A would not apply to these lands and that therefore there was no inam to be enfranchised. The matter was taken up before the Sub-Collector of Ongole, who, however, did not take any action as it was reported to him that ' the trustees of the temple have filed a suit ' in the Sub-Court, Bapatla, evidently referring to the interlocutory application out of which this appeal has arisen. The Sub-Collector added that the petitioners 'may renew their application after the suit is disposed of, if they are so advised.' The present positiontherefore is that there is no definite adjudication as to whether these lands with which we are concerned are inams which can be enfranchised under Sub-section (i) of Section 44-A. We may point out that the argument of the trustee-respondent is that these lands are such as would come under Sub-section (2) of Section 44-A. In I.A. No. 1493 of 1943 the trustees who were the petitioners alleged that the respondents-devadasi service holders declined to do service and discontinued rendering service from 1941 and that therefore they incurred forfeiture of their rights to the offices which they held ; which forfeiture the trustees sought to enforce with reference to Clause (8) of the scheme decree. The application was resisted by the present appellants but the learned Subordinate Judge held that the service holders were liable to be dismissed from their office. In doing so he recorded that it was conceded at the hearing of the petition that the respondents before him held the office of dancing girls in the suit temple and that it was also conceded that they refused to perform dancing service in the temple. He then dealt with the contention that their refusal could not amount to misconduct. He held that it amounted to misconduct and in consequence of his finding he allowed the petition in favour of the trustee;
6. On behalf of the appellants it has first been argued by their learned advocate that there was no obligation on the part of his clients to render any service after the commencement of the enfranchisement proceedings in 1941. This seems to us to be an obviously incorrect interpretation of Sub-section (5) of Section 44-A which we have already set out. That sub-section clearly provides that the obligation to render service would come to an end only on the enfranchisement or freeing, as it is described, of the lands which are held by the service holders as emoluments of their office. We see no scope whatever for the argument that the mere commencement of the proceedings with a view to the enfranchisement or freeing of the lands would have the effect of rendering the service holders immune from their obligation to render service.
7. It is next argued that the services in question are prohibited by Madras Act V of 1929 and that any failure to render service so prohibited can not amount to misconduct. This argument again we cannot accept. The Legislature no doubt says in the preamble that it is expedient to put an end to the practice of dedication of young girls as devadasis-obviously a laudable purpose ; but the Legislature does not prohibit the rendering of such service in the temples where they were being previously rendered. If the procedure laid down in Madras Act V of 1929 is followed the result would be that the lands held as emoluments of service would be disburdened of the obligation of such service, so that after the enfranchisement or freeing as the case may be, the lands will be held by such persons as are declared to be entitled thereto as ordinary freehold lands. If the Legislature intended to forbid the rendering of such services, it could have easily said so. It has laid down a fairly elaborate procedure for dealing with lands which are held on condition of such service and Sub-section (5) itself indicates that the service must be continued to be rendered till the procedure laid down in the first two sub-sections is completed.
8. This, however, does not end the appeal. Taking all the facts into consideration it is fairly clear that the present appellants stopped rendering service from 1941 under the mistaken impression that once they commenced proceedings for the enfranchisement of the lands they were no longer under any obligation to render service. This was no doubt a misapprehension on their part; but having regard to the terms of Clause (8) of the scheme decree we think that it would not be right to regard the refusal on their part to render service under the mistaken impression to which we have already referred as amounting to misconduct which should be visited with the termination of their office and therefore of their right to hold the lands.
9. In this view we must reverse the judgment of the learned Subordinate Judge in so far as he held that the offices held by these defendants had terminated by their misconduct.
10. While setting aside his order, however, we must make the reversal subject to certain conditions for which Mr. Raghava Rao, the learned advocate for the respondents-trustees, quite justifiably asked. In the first place the appellants brought all this trouble on themselves by their refusal to render services which in our view they were under an obligation to render. It is only right that they should be directed to pay the costs of this appeal and also the costs of the interlocutory application in the lower Court.
11. It would appear that subsequent to the disposal of this application by the learned Subordinate Judge the trustees filed O.S. No. 35 of 1946 in the Court of the Subordinate Judge of Bapatla for recovery of the lands held by the appellants. It was argued on behalf of the trustees that the costs of this suit should also be made payable by the appellants. With this, however, we cannot agree. The trustees may be taken to have filed the suit in perfect bona fides in pursuance of the order passed in their favour in the interlocutory application. But that is no justification for visiting upon the appellants the penalty of paying the costs of the suit when they are successfully assailing the interlocutory order itself.
12. In order to safeguard the interests of the trust we must make it abundantly clear that the appellants are under an obligation to render devadasi services and to continue to render them till such time as they get appropriate orders either under Sub-section (1) or Sub-section (2) of Section 44-A. If hereafter they persist in their refusal to render the services it would be certainly regarded as misconduct coming within the language of Clause (8) 'of the scheme decree.
13. The costs of the civil miscellaneous appeal and the costs of the interlocutory application must be paid by the appellant to the respondents within a month after they are taxed. The appeal is allowed subject to these amounts being paid. If these amounts are not paid within the time fixed the appeal will stand dismissed.
14. G.R.P. No. 1069 of 1946 is unnecessary and it is dismissed. No order as to costs.