1. This second appeal has been referred to a Bench by Subba Rao J. for a decision about the proper construction of Section 44-B of the Madras Hindu Religious Endowments Act, 2 of 1927.
2. The property in dispute was among those originally granted in mam to the ancestors of the predecessors in interest of the respondents for the performance of Parak service in the pagodas of the village of Panyam in Nandyal taluk of the Kurnool district. The service is described in column 8 of the Inam Fair Register as follows:
'Granted for attending the procession in the Pagoda with silver sticks, going before the idols and crying aloud at certain intervals.'
The total extent of the lands covered by the grants and title deeds is over 115 acres of dry, wet and garden lands and is covered by two title deeds. The conditions of the grant as set out both in the Inam Fair Register as well as in the title deeds make it clear that the grant was to enure 'so long as the conditions of the grant are duly fulfilled.'
3. The Courts below have held on a construction of the Inam Pair Register etc. that the grant comprised both the warams and it is unnecessary to canvass the correctness of this finding. Similarly the courts below have also held that the grant to the inamdars was a personal grant burdened however with the parak service and not a service inam, in the sense of the inam constituting the emoluments of the office and this finding also is not challenged before us.
4. The question now in controversy arises this way. The grantees of these lands have alienated considerable portions of the lands granted to them and the parak service has ceased to be performed. In these circumstances the trustees of some of the temples at Panyam moved the Sub-Collector under Section 44-B of the Madras Hindu Religious Endowments Act, 1927, for the resumption of the lands and their regrant to the temple on the first two grounds on which resumption could be ordered under Section 44-B(2)(c).
The Revenue Divisional Officer, Nandyal, conducted an enquiry, and as a result recorded his findings in his proceedings dated 30-9-1943, holding that the inam comprised both the warams, that the inam was granted to the predecessors in interest of the respondents on condition of their rendering Parak service, that there had been a breach of the condition of the grant by failure to perform the service and that the lands comprised in the inams had been alienated by way of sales, mortgages, gifts and leases falling within Section 44-B(2)(c)(i). On these findings the resumption of the inam lands was ordered and by this very order he granted both the warams to the temples in Panyam village. The alienees filed an appeal to the Collector and this was dismissed by order dated 1-8-1944 by the officer who confirmed the findings of the Revenue Divisional Officer.
5. The plaintiffs accordingly filed this suit against the trustees of the temples under the proviso to Section 44-B(2)(d) raising 'inter alia' the question as to the jurisdiction of the revenue authorities to order the resumption of the inam in suit under Section 44-B. The trustee-defendants raised contentions regarding the nature of the grant by pleading that the suit lands are religious service inams, in the sense of being emoluments for the performance of service and alternatively that even if the inam was a personal grant in favour of the grantees, burdened with the performance of the Parak service, the grant was conditional on the performance of the service and as there was breach of this obligation, the resumption and regrant were justified under Section 44-B.
6. The courts below concurrently found that the mam was a personal grant burdened with the Parak service and that though there had been alienations of the lands granted, and failure in the performance of the service, the resumption and regrant by the revenue authorities acting under Section 44-B was 'ultra vires' and that recourse must be had to the machinery provided by B. S. O. 54 for affording relief to the temples which had been deprived of the service which had been imposed as a condition of the inam grant. On this view the suit has been decreed by the courts below.
7. On the general question of the resumabilityof grants there cannot be any room for controversy.Lord Atkin in -- 'Lakhamgouda v. Baswantrao' after referring to the leadingcase of -- 'Porbes v. Meer Mahomed Tuquee', 13 Moo Ind App 438 (PC) (B), said:
'The distinction to be borne in mind is betweenthe grant of an office to be remunerated by theuse of land and the grant of land burdened withservice. In the former case the land will primafacie be resumable; in the latter case primafacie it will not; but the terms of the grant orthe circumstances in which it was made mayestablish a condition of the grant that it wasresumable. The onus will be upon the grantor tomake out such a condition.'
8. The only question argued by Mr. Rajah Aiyar, learned counsel for the appellants is as towhether the courts below were right in their construction of Section 44-B as being inapplicable to the resumption and regrant in the case of a personal grant burdened with service to a temple, it being conceded that the grant in the present case fell within this category.
9. It is admitted at the bar that there are no decisions of this court touching this point. Mr. Rajah Aiyar's argument on the construction of the section is briefly this. Section 44-B(1) covers 'any inam granted for the performance of a charity or service connected with a..... templeand made, confirmed, or recognised by the British Government.'
The words 'for the performance of a.....serviceconnected with a temple' are wide and are capable of comprehending not merely service inam grants strictly so called, i.e., grants which constitute the emoluments of an Office, as well as personal grants, burdened with service to be performed in a temple--whatever might be the monetary value of the service as compared with the property granted. He also placed reliance on the specific exclusion of 'personal grants' in the definition of 'religious endowment' in Section 9(11) of the Act where the expression 'performance of any service or charity connected with the temple' occurs. On the other hand Mr. p. Somasundaram, for the respondents relies on this definition in Section 9(11) as supporting his contention that Section 44-B should be construed so as to exclude cases of personal grants of the typo now in suit.
10. As the expression 'endowment' or 'religious endowment' does not occur in Section 44-B in our opinion the definition in Section 9(11) has no relevance to the issue and may therefore be ignored.
11. The question has therefore to be decided on the provisions and terms and language of Section 44-B in the light of the law bearing on the point. Section 44-B was introduced into Act II of 1927 by way of an amendment effected by Madras Act. XI of 1934. Prior to the introduction of this amendment, the enforcement of the conditions of grants in favour of charities and religious institutions was by recourse to E. S. O. 54. Under para 1 of this order a duty was laid on the revenue officers to see that inams confirmed by the Inam Commissioner for the benefit of or for services to be rendered to any religious and charitable institution, are not enjoyed without the terms of the grant being fulfilled.
Under para 2 religious and charitable inams may be resumed on the ground that the whole or a, portion of the land in respect of which the title deed was issued has been alienated or otherwise lost to the institution or service to which it once belonged or that the terms of the grant are not observed. Under para 4
'The Collector may resume and re-assign on his own authority (a) inams.....attached to temples which have been abandoned or in ruins, (b) any religious or charitable inam the value of which does not exceed Rs. 100 per annum.' If the value exceeds Rs. 100 per annum the Collector has to submit proposals to the Board of Revenue who are to be the final authority in the matter of resumption.
12. The provisions which follow make it clear that even in the event of failure of the condition, of the grant there is no intention to dispossess the-inamdar from the land normally, but that the land would bo subjected to full assessment and the assessment made available to the institution in lieu of the service lost. Applied to the case ofa personal grant burdened with service, what would be resumed in the event of non-performance of service with or without alienation therefore would be that portion of the grant which represented the value of the 'service-burden and not that which was 'personal', and therefore there was no injustice caused.
13. What ultimately emerged as Madras Act 11 of 1934 was introduced into the Legislature by Bill 19 of 1933 and in the statement of objects and reasons it is stated that the bill was designed to provide for cases of alienations or default in performance of 'service inams' and to safeguard the interests of the religious institutions in such event. It went on further to state that the grant of the assessment alone to the institution by Government on resumption in cases where the grant did not fall within sub-para 2 of para 5 of B. S. O. 54 prejudiced the interests of the institution and therefore had to be remedied. When the bill in the form published, became Section 44 B of Act 2 of 1927 B. S. O. No. 54 was amended to read :
'Religious and charitable inams fall under two distinct classes, viz. :
(a) inams granted for the performance of a charity or service connected with a Hindu mathor temple; and
(b) inams not falling under class (a) Resumption and re-grants of inams falling under class (a) are, in cases where the inams are alienated or there is a failure to perform the charity or service, governed by the provisions of the Madras Hindu Religious Endowments (Amendment) Act, 1934 (Act 11 of 1934), and the procedure prescribed in that Act & in the rules framed under it (which are contained in Appendix II) should be strictly followed in respect of them. As regards inams falling under class (b), their resumption & regrant should be dealt with in accordance with the provisions of paras. 2 to 14 infra.'
14. Apart from the light afforded by this legislative history, that the case of a persona! grant burdened with service falls only under Clause (b), i.e., inams not falling under Clause (a) in the above classiflcation, this is also clear from a close examination of the operative provisions of Section 44-B itself. In the first place reference may be made to condition (iii) of Sub-clause (2) which provides for resumption and regrant in the event of the temple ceasing to exist or the service in question becoming impossible of performance. It is only necessary to add that the three conditions are alternative and that on any of them being satisfied the inam might be resumed and regranted. In the case of a personal grant--though burdened with service, the temple ceasing to exist would not be any breach of the conditions of the grant and there could not normally be any resumption; but on the other hand, the effect would merely be, that the grantee would hold the land freed from the obligations imposed by the grant.
15. This provision is in our opinion an indication of the type of inams dealt with by Section 44-B, viz., that besides regular endowments for the institution, only purely service inams as distinguished from personal inarns are included within its purview. The matter is further placed beyond doubt by the terms of Clause (f) of Sub-clause (2) under which it is obligatory and mandatory on the part of the revenue authorities to regrant such resumed inam to the temple concerned. The use of the expression 'regrant' is significant and is consistent only with a case where though the original grant might be in favour of an individual service holder, it is virtually and substantially to the institution to which the service has to be rendered. The case of a personal grant though burdened with service would be obviously outside this category.
Further, these proceedings are not in their nature designed to deprive persons of property to which they are absolutely entitled viz., the persona), portion of the grant and the court would be disinclined to construe the provision as having such effect, unless the operative words leave it no option. As has been pointed out above, the language and the provisions of Section 44-B and its his-tory far from supporting the contention raised by Mr. Rajah Aiyar, clearly point to the conclusion that personal inams are not within the scope of the special procedure enacted by Section 44-B, but on the other hand fall within the residuary type mentioned in B. 8. O. No. 54(1)(b) and would have to be dealt with under the procedure prescribed in the said Standing Order. Our conclusion is for tilled by a reference to certain other provisions of the Hindu Religious Endowments Act itself where analogous breaches of duty are dealt with.
Under Section 44 of the Act, where the endowment for the performance of a charity or service connected with a temple consists merely of a charge on property and there is failure in the due performance of the charity or service by the person responsible, the trustee of the temple may require the person in possession of the property on which the endowment is a charge to pay to the trustee the expenses incurred or likely to be incurred in causing the charity or service to be performed. It is no doubt true that it has been held that service inams are not within this provision. Vide --'Kotayya v. Yellamanda', AIR 1933 Mad 549 (C), but we arc referring to the provision merely as affording a useful parallel.
16. The result therefore is that this second appeal fails and is dismissed with costs.