Venkatasubba Rao, J.
1. The principal question that has been argued in this batch of appeals is, whether the property in question in each case is held upon trust for the deity or whether the archakas possess in it any beneficial interest. Section 69 of the Madras Hindu Religious Endowments Act provides for payment of contributions by temples in order that certain expenses may be met. The amount of the contribution depends on the income of the temple and for the purpose of determining what the income is, the question becomes important under Section 70 whether a particular property belongs to the institution or not. The last mentioned section has since been amended, but the provision as it stood before the amendment, overns the present case. The contribution, the section enacted, was to be assessed on and notified to the trustee who would be bound to pay the amount within a certain prescribed time, from the funds of the temple concerned. ' In default of his doing so ', the section went on to enact:
The Court shall on the application of the President of the Board or Committee recover the amount as if a decree had been passed for the amount by the Court against the religious endowment concerned.
2. The result of the decisions which have construed Sections 69 and 70 is, that the assessments made under the sections stand upon the same footing, by some sort of fiction, as decrees of Civil Courts; from that it follows, that petitions filed by the Board to recover the amounts so assessed, partake of the character of execution petitions filed for enforcing such decrees, and are governed by the rules of law applicable to them. In the Guntur District, there seems to be numerous village temples and more than 200 execution petitions have been filed by the Board; in some cases, the question of the deity's title was put in issue even at the initial stage and decided by the Court; in the remaining cases, owing to reasons which it is unnecessary to state, the decision of the question was postponed, but when upon attachment of crops thearchakas preferred claims, the question of title came to be considered as upon claim petitions and in each case a finding as to the ownership of the property was given. It may be observed that the bulk of the cases was tried by Mr. Lobo, to whom we are indebted for the large amount of material which he has carefully collected and analysed in his exhaustive judgment. He was succeeded by Mr. Chandrasekhara Aiyar as District Judge, who heard a few of the cases and who, in one of the two judgments he delivered, has fully set out what he regards as the true principles governing this subject.
3. The question, as already stated, is whether the claim made by the archakas, on the particular facts of each case, is well founded. On their behalf, the argument has been put thus: that the properties were given to their ancestors subject to or burdened with the performance of certain services or in the alternative, that the gifts were annexed to the office of archaka, that is to say, were made to particular individuals for the time being filling that office. On the other hand, for the Board it is contended, that the property in each case was dedicated absolutely to the deity concerned. In other words, each side, taking its stand on the threefold classification adopted in
4. Subramanya Odayar v. Srivaikuntam Kailasana the Swami Koil (1933)39 L.W. 389 : A.I.R. 1934 Mad. 258 has sought to show either that the property was a gift to the God (that is the Board's contention) or was an archaka service inam, which expression is used as embracing both the categories where the donees take beneficially (that is, the contention of the archakas). In that case it was observed:
There are three possible views that may be taken of grants of this kind; first, that the land was granted to the institution; secondly, that it was intended to be attached to a particular office; and thirdly, that it was granted to a named individual burdened with service, the person so named, happening to be the office-holder at the time of the grant.
5. Excepting in one case the original grant has not been produced. The archakas contend that the trusts were created, limited to the purpose of ' nithya naivedya deeparathana', that is to say, they were intended to be the donees who were to take beneficial interest, subject to particular payments or the performance of particular services. Were the deeds of gift produced, the question would be one of construction, whether the donee in trust is a trustee in respect of the whole property given or only in respect of the part that is given to the deity. In the latter case, the donee has beneficial interest subject to a particular purpose; in the former, the gift is for a particular purpose with no intention that he should take beneficially. (See Godefroi on Trusts, 5th Edition, page 122, Chapter X Resulting Trusts and Tudor on Charities, 5th Edition, Chapter II, Section 2, headed 'creation of a valid charitable trust'.) Where specified charitable payments exhaust the income of the property at the date of the gift, it has been held in several cases, that the intention is to devote the whole to charity, but, where they do not so exhaust the income, the charitable trust has been limited to the specific payments and subject to that, the donees have been held to take beneficially. As is observed in Halsbury, where at the date of the gift the property given is more than sufficient to satisfy the purposes specified, the surplus does not go to charity, but either goes beneficially to the donee to whom the property is given in trust for the charitable purposes, or, results to the donor and those claiming under him (vide 4 Hals. Chapter on Charities, paragraphs 291 and 292). It of course follows from this, that if the property or the whole of the income arising from it is given to charity, any subsequent increase in the value of the property accrues to the charity. (Ibid.) In these cases, as already observed, the instruments of gift are not forthcoming--that renders the decision of the question difficult enough, and it is equally impossible to apply the test of income as no evidence has been offered in that respect. Moreover, even if such evidence, were available, the matter would still present some little difficulty in view of what 'nithya naivedya deeparathana' imports. It involves a dual liability on the part of the archakas: first, the supply of material and secondly, the performance of services. As Mr. Chandrasekhara Aiyar points out in his judgment:
Daily offerings in the shape of cooked rice have to be made, cocoanuts and fruits and betel leaves and nuts and flowers have to be offered; camphor has to be waved and incense burnt; and lights have to be lit. All these have to be met from the income from the properties. It is true that the archaka has to maintain himself and the members of his family, and there is no separate remuneration by way of wages or salary fixed for him. But the problem never perhaps troubled the minds of the grantors because the substantial offerings to the deity always come back to the archaka and would be utilised by him for his maintenance. There is no need to make any special arrangement for his support. What was offered to God was practically his. The only items that meant an expenditure without any personal benefit to the archaka were things like camphor, incense and oil.
6. This accurately describes the effect of the oral evidence adduced to show what the duties of the archakas are. As regards the quantity of the food to be offered, it is impossible to fix it, depending as it does upon the needs of the household of the archaka. Then again, as regards the services of the archakas, the difficulty lies in finding their money equivalent.
7. The question arises, what then is the evidence bearing on the nature of the grant? No oral evidence has been adduced and that is natural enough, the grants having been made long ago, sometimes during the Moghul period and in many cases, long before the British conquest. The lower Court has had therefore to rely exclusively upon the effect of the iriam proceedings in order to find out the nature of the original grant. That enquiry has been described by the Privy Council as a great act of State and the entries then made by responsible offiqers furnish the most cogent evidence as to the character of the endowment. In these cases, Mr. Lobo has had the unusual advantage of being able to study as many as eighty-eight Eair Inam Register Extracts and this has enabled him to compare the terminology adopted by individual officers and to understand the significance of the words used. He has been able to show that different sets of words have been frequently employed to convey the same idea. Where, as in some instances, the inam statements have been produced in addition to the inam registers, greater light is thrown on the question at issue.
8. Taking by way of example some cases in which both inam statements and extracts from the inam registers are available, what is disclosed may be shortly stated. In CM.A. No. 299 of 1934 the inam statement signed by the ancestor of the present archaka mentions the deity in column I headed inter alia 'name of the present enjoyer.' Likewise, in column XI the deity is shown under the heading ' Particulars of the present enjoyment.' There can be no doubt therefore on these admissions, that the gift was to the God. Turning to the corresponding inam register, in column VIII it is mentioned that the grant was ' for the worship of the idol in the pagoda.' In column XIII the original grantee is shown as the deity; in column XIV the name entered in inam's register is likewise that of the deity. The same remark applies to column XV, which is headed' 'Name entered in subsequent accounts.' In spite of these entries, reliance is placed by the archakas on column XVI where under the heading ' The present owner ' the following entry appears: ' Sri Visveswaraswami (worshipper) Tangalur Venkatasivadu.' Here the word 'worshipper', as is conceded,, means ' archaka '. What is contended is, that the coupling of the name of the archaka with that of the deity shows that the gift was made to the archaka burdened with service. It is this entry in column XVI which has made such an argument possible, but it is perfectly clear that in the face of the admissions and the entries already referred to, such a contention cannot prevail. There is one matter to which in this connection attention may be drawn. In regard to column VIII it was contended for the archakas that the words ' For the worship of the idol' materially differ from the terminology 'for nithya naivedya deeparathana', the argument being that in the latter case there is a stronger presumption that the grant was intended to be a service inam. That this contention is untenable, is shown beyond doubt by a comparison of the entries in Ex. J, the inam statement and Ex. H-1, the inam fair register in C.M.A. No. 121 of 1934. Both these documents relate to the temple of Sri Seetharamaswami at Nandiveligu. In the inam statement signed by the archakas' predecessors-in-interest, the object of the grant is stated to be ' for the offering of daily neivedyam and deeparathana' (see column VI). The corresponding entry in the inam register is ' for the worship of the idol in the pagoda.' Thus, the statement and the register employ two different sets of words to convey the same idea. It may here be observed that, having regard to the scheme of the register, the most decisive entries are those appearing in columns XIII to XVI, for, it is here that provision is made for entering of the name of the grantee, as shown in the relevant ancient records, at different stages, from the date of grant to the date of the preparation of the register--this period covering in some cases more than a century. Again, a distinction has been sought to be made on the basis of the entries in column XXI. 'The phraseology of the Deputy Collector's recommendation was not uniform. In some cases, it merely ran 'to be confirmed'; in certain other cases, the language used was ' to be confirmed and continued so long as the service is regularly performed.' That no difference was in fact intended, is shown by a comparison of the registers in C.M.A. Nos. 299 and 120 of 1934. The entries in the statement and those in the register in C.M.A. No. 299 of 1934 make it perfectly clear that the grant was made to the deity; the recommendation in column XXI there was ' to be confirmed '. In C.M.A. No. 120 of 1934 the admissions of the previous archakas and the entries in the register, show likewise indubitably, that the grant was intended to be to the deity, but in column XXI we find that the recommendation, although based on data similar to what existed in the previous case, was differently worded--which fact shows, as already stated, that this difference in the phraseology is immaterial. There is yet another contention that has been advanced, which may be conveniently noticed here. It has been suggested for the archakas that there is another difference in the wording of the recommendation that has an important bearing. The difference lies in this, namely, whether the reference in column XXI is to the service or to the worship. It is argued that if the recommendation is to the effect that the grant is 'to be confirmed so long as the service is performed', that is a service grant but if it says ' so long as the worship is performed', that is a grant to the deity. In the first place, it is significant that the final order in either case is merely ' confirmed '. Secondly, a comparison of the entries in the three out of the four registers filed in C.M.A. No. 131 of 1934 is sufficient to show that this contention is unfounded. Although there is no material difference in the entries in the other columns, the recommendation in the one case refers to the continuance of the worship, whereas in the other two cases, to the performance of the services.
9. Lastly there is another piece of evidence in which we may refer. In some cases extracts from the settlement register have been filed and they show that the lands were entered in the name of the God.
10. Mr. Rangachari, Counsel for some of the archakas, in his argument stressed the distinction between the two classes of grants, namely:
(i) those made to specified individuals who at the time happened to be archakas; and
(ii) those made to the archakas for the time being, that is, gifts annexed to the archaka office.
11. His argument is, that although the evidence falls short of showing that the grants here belong to the former category, it must still be held that they fall under the latter group. As between the two contentions, it would probably be easier to make out, were the material forthcoming, that the gifts were intended to be annexed to the office, but in the present cases the only possible conclusion at which we can arrive is, that the gifts were intended for the deity.
12. For the archakas reliance has been placed upon Swami Aiyangar v. Venkataramana Aiyangar (1933) 39 L.W. 513 : A.I.R. 1934 Mad. 381 where the entries in the inam fair register were construed as evidencing a grant burdened with service. But that case is easily distinguishable by reason of the peculiar wording of the entry in column XXI, which ran thus 'to be confirmed to the party in column XVI so long as he continues the performance of the services.' The; reference here is to a party and there can be no ambiguity in the expression 'he continues', which must necessarily refer to some individual as distinguished from the deity; and when this entry is read in conjunction with what appears in column XVI where the name of the archaka is given, though preceded by that of the God, it would be legitimate to infer that the grant was in favour of the archaka. As observed in that case, whatever ambiguity might attach to the words in column XVI were explicit and unequivocal.
13. It has been contended, not without justification, that the effect of our judgment would be to unsettle prevalent notions and to deprive the archakas, as a class, of what has always been assumed without question, to be their private property. But this result, though unfortunate, cannot be helped, and in fact, but for their long and continued enjoyment, the claim made on their behalf would have found little support in the material on the record. The resulting hardship will, we have no doubt, be redressed, partially at any rate, by the Religious Endowments Board fixing proper and adequate remuneration for the archakas' services; this would be some recompense for the loss by the archakas of the lands which, though wrongly, they came to treat as their own.
14. Then remains a contention which has been put forward, relating to the service of the notices. Under Section 70 of the Hindu Religious Endowments Act, the notice of assessment has to be served upon the trustee of the institution concerned. In most of these cases there was no legal trustee; where a trustee could be found, he was either a nominal or self-constituted trustee. What was more significant--the only property that could be called temple property was in the majority of the cases, property claimed by the archakas as their own, so that if their claim was well-founded, the temple would be left without a cent of land. The question that arises is, whether the requirement of Section 70 is fulfilled by the notice being served upon the archaka on the ground that he is the de facto trustee. When the archaka takes possession of the property of the temple or a part of it and conducts himself for all practical purposes as if he were a trustee, we fail to see why his position is not that of a trustee de son tort or de facto trustee, especially when, as is natural in the case of such village temples, there is no properly constituted or de jure trustee. Section 9(13) runs thus:
Trustee ' means 'a person, by whatever designation known, in whom the administration of a religious endowment has vested and includes any person who is liable as if he were a trustee.
15. In Halsbury's Laws of England the expression ' trustee de son tort ' is thus defined:
A person who, not being a trustee and not having authority from a trustee, takes upon himself to intermeddle with trust matters or to do acts characteristic of the office of trustee, makes himself a trustee de son tort--a trustee of his own wrong, or, as it is also termed a constructive trustee.
16. Such a trustee or a de facto trustee clearly falls within the definition given in the Act. We therefore agree with the Court below that in every case the service has been sufficient.
17. In some few cases another point has been raised, namely, that under Section 69 the authority that should make the assessment is the Board itself and where a subordinate officer has been deputed to perform that function, there has been no valid assessment. But it has been found on examination that this question is not material, as there has been in each one of the cases at least one demand, that is, the demand for one fasli which is not open to this attack; it has therefore been agreed that no useful purpose will be served by pressing this point.
18. The result is, that in the following cases the judgments of the Court below are confirmed and the appeals are dismissed with costs; the advocate's fee in each case is fixed at Rs. 25. C.M.A. Nos. 299 of 1934, 119 of 1934, 120 of 1934, 122 of 1934, 126 of 1934, 127 of 1934, 130 of 1934, 132 of 1934, 134 of 1934, 455 of 1934, 456 of 1934, 121 of 1934, 123 of 1934, 128 of 1934, 129 of 1934, 131 of 1934 and 458 of 1934.
19. The following two appeals filed by the archakas have not been pressed and are dismissed with costs; the advocates' fee in each case is fixed at Rs. 251(C.M.A. Nos. 124 of 1934 and 133 of 1934).
20. As regards C.M.A. No. 125 of 1934 also filed by the archakas, so far as the main part of the case is concerned, their claim fails; but in regard to the 18 acres referred to in the lower Court's judgment, the case stands on a different footing. In the inam register the total extent shown as the diety's land is 20 odd acres, but according to the present contention of the Board, the extent of the land claimed is 47-4 acres and comprises five survey numbers: 422, 547, 563, 569 and 625/3 (see Ex. G, the preliminary report). According to the re-settlement register, only three of these plots, namely, those bearing 422, 547 and 563 are shown as belonging to the institution and these three together are of the total extent of nearly 32 acres, that is to say, more than what is shown in the inam register. It follows that the claim of the archakas that they are entitled to the plots bearing the remaining two numbers, namely, 569 and 625/3, of the total extent of 18 odd acres cannot be dismissed as being unfounded. The omission of these numbers in the re-settlement register supports their contention that the diety is not entitled to them. Although the archakas have not been able to make out how they acquired these lands, we must on the evidence hold that their claim has been established. To this extent the lower Court's finding is varied; otherwise the appeal stands dismissed. In this case we direct that each party shall bear his costs throughout.
C.M.A. No. 25 of 1934 (. P. No. 176 of 1930).
21. So much for the appeals filed by the archakas. Turning now to the appeals filed by the Board, C.M.A. No. 25 of 1934, with which we shall first deal, raises no question of title. The respondent admits that his possession is that of a trustee but contends that the temple in question is a private and not a public one. The learned District Judge has upheld his contention on the ground of res judicata but as has been held in several cases, a Court under Section 70(2) of the Act must execute the demand made by the Board as if it were a decree and cannot enter into questions of its validity or propriety. (See Hindu Religious Endowments Board, Madras v. The Shirur Mutt (1934) 68 M.L.J. 200 : I.L.R. 58 Mad. 760 and Ramiah v. Hindu Religious Endowments Board, Madras (1934) 68 M.L.J. 494 : I.L.R. 58 Mad. 764.) We must therefore set aside the order of the Court below, but this decision will not preclude (we make this observation with the consent of both sides) the question whether the temple is private or public, from being raised under Section 84 of the Act and being dealt with under its provisions. In the circumstances we direct each party to bear his costs throughout.
C.M.A. No. 135 of 1934 (E.P. No. 204 of 1930).
22. The question here, as in most of the cases dealt with already, is whether the grant was to the deity or was made to the archakas burdened with service. The trustee of the institution appears by Counsel and supports the claim put forward on behalf of the Board. The lower Court has upheld the archakas' claim, but in doing so, has refused to consider two decisive documents. The inam fair register completely supports the Board's contention, that the diety is the owner and indeed, there was only one course open to Mr. Lobo on the principles he has himself adopted in the cases already dealt with by us, namely, to have allowed the Board's claim. The entries in the register (Ex. CC-7) are unambiguous and fully make out the deity's title. The entry in column VIII is ' for the support of the pagoda and the deity's name is given both under the column! headed 'the name of the original grantee ' (column XIII) and under the columns relating to ' the present owner' (columns XVI to XX). As already remarked, the learned District Judge would have had no option on these entries but to give a finding in favour of the Board; but unfortunately, though this exhibit was filed and was used by the Judge himself for another purpose, he refused to consider it in this connection, apparently on the ground that it was not definitely relied on by the Board for proving title. Further, the resettlement register, on which also Mr. Lobo acted in the other cases, fully supports the Board's contention. This was filed in the lower Court, but was not for some reason marked. An affidavit has been filed here explaining the circumstances in which the lower Court failed to consider the two documents mentioned above. There is no reason why these two public documents should be excluded in this particular case and we have therefore decided to act upon them. For the archakas, reliance has been placed upon Exs. II and I, which show at best no more than that their ancestors treated the property as their own. But, even then, it must be remarked that the recitals in. Ex. II, far from supporting the archakas' claim, seem to evidence a recognition on their ancestors' part that the property belonged to the temple. So far as Ex. I is concerned, it does not deal with the suit property, though there are some remote recitals relating to it. There can be no doubt on the evidence that the claim of the deity has been made out. The appeal is allowed with costs throughout, to be paid by respondents other than the first respondent. The advocates'fee i's fixed at Rs. 25.
C.M.A. No. 297 of 1934 (E.P. No. 245 of 1931).
23. In this case, the lower Court's finding is clearly wrong. The entries in the inam register show beyond doubt that the grant was made to the deity. The name of the original grantee in column 13 (as in many other cases) does not appear, and the entry reads 'Not known.' Column 14 shows that in Fasli 1207 (1807 A.D.) the deity's name was entered in the relevant records: in column 15 the deity is likewise shown as the owner in the accounts of Fasli 1240 (1830): in columns 16 to 20 ' the present owner' is shown as the deity again. The lower Court's finding that the grant was an archaka service inam, cannot in the face of these entries be upheld. The cases were tried by Mr. Chandrasekhara Aiyar in two batches. The principles he adopted in deciding the second batch are, as we have shown, correct. This case however belongs to the first batch and had he applied those principles, his conclusion would have been quite the opposite. The truth is, that by the time he came to deal with the second batch, he had become quite familiar with the terminology employed and the principles applied at the inam enquiry. Our conclusion receives further support from the inam statement filed here by consent. The entries in that statement amount to admissions by which the archakas are bound. Further, there are these circumstances, namely, that the archakas alone have been functioning as trustees and that, should it be held that the land belongs to the archakas, the temple would own no property whatever.
24. In the result, the lower Court's decision is set aside and the appeal by the Board is allowed with costs; the Advocates' fee is fixed at Rs. 25.
27. CM.A. No. 136 of 1934 (E.P. No. 48 of 1930). This case differs from the rest, as the deed of gift is here forthcoming; also in another respect, namely, that the gift is of a recent date. The donee under the deed is Narayanacharlu, archaka of Sri Kothandaramaswami. As observed in Swami Aiyangar v. Venkataramana Aiyangar : AIR1934Mad381 the question whether the grant is to an institution represented by its manager or to a named individual who fills a certain character, is often a difficult one. Three constructions are possible: first, that the religious trust was intended to attach to the whole property, in which case the archakas hold it in trust for the deity; secondly? that it was intended to attach to a part of it; in other words, that the gift was to the archakas burdened with service; that the gift was intended to be annexed to the archaka office (see Subramania Odayar v. Srivaikuntam Kailasanatha Swami Koil (1933) 39 L.W. 389). The question is one of construction, depending in each case upon the terms of the particular instrument. The gift was made, as the deed recites, on the occasion of the installation of the deity. This supports to some extent the Board's contention but, apart from that, the decisive words in our opinion in the deed, are those, which direct the archaka to take possession on behalf of the institution. The expression 'on behalf of' clearly indicates that the donor intended that the deity was to be the grantee. It is contended that the recital that the donee was to be in possession ' hereditarily ', is inconsistent with the idea that the land was to be taken by the deity. This expression shows no more than the gift was intended to be absolute; it was with the same object that the other recital was made, namely, that the donee was to enjoy the land in any manner he pleased. Lastly remains the fact, though this by itself may not amount to much, that the property was described in the deed as being worth only Rs. 600, which would go to show that the income would be just sufficient for the purposes specified in the deed, namely, nithya naivedya deeparathana.
25. In the result, the lower Court's decision is reversed and the appeal filed by the Board is allowed with costs; the Advocates' fee is fixed at Rs. 25.
C.M.A. No. 137 of 1934 (E.P. No. 118 of 1930) and
C.M.A. No. 295 of 1934 (E.P. No. 82 of 1931).
26. In these cases the decisions of the lower Court have not been shown to be wrong and they are accordingly confirmed and each of the appeals is dismissed with costs; the advocates' fee in each case is fixed at Rs. 25.
27. C.M.A. No. 296 of 1934 (E.P. No. 128 of 1931). Mr. Subba Rao, the Board's Counsel, reports that the appeal has abated and it is dismissed.