M.M. Ismail, J.
1. An extent of 65 1/4 cents of land was granted in inam for the support of a Nandavanam for the use of the pagoda of Sri Ranganathaswami at Srirangam. The Inam Fair Register shows that in 1865 the said inam was in charge of one Vannan Narayanan. There had been litigations between the descendants of Vannan Narayanan and other members of the Vannar Community, wherein the descendants of Vannan Narayanan asserted their personal right to the property, while, the other members of the community contended that the property belonged to them. The result of the series of litigations shows that ultimately the dispute ended in favour of the members of the community displacing the personal right claimed on behalf of the descendants of Vannan Narayanan. Thereafter, on 17th June, 1939, one Arumugha Ekali and another, claiming to be the descendants of Vannan Narayanan, executed a release deed in favour of Sri Ranganathaswami Temple stating that they were not able to maintain the Nandavanam and that they were not in a position to render the service arising therefrom. After this, the temple leased out the land to the first defendant in the suit. The first defendant sought to recover possession of the property from the various members of the community in occupation of the property. On the failure of the first defendant to recover possession of the property, the Executive Officer of the temple filed an application under Section 44-B of the Madras Hindu Religious Endowments Act II of 1927 before the Collector (Revenue Divisional Officer, Tiruchirapalli) for resumption of the inam and to re-grant the same to the temple. The Revenue Divisional Officer, by his order dated 30th November, 1954, declined to resume the inam, holding that the inam came within the scope of B.S.O. No. 54 (1) (b) and therefore resumable only under B.S.O. No. 54 (2) and not under Section 44-B of Madras Act II of 1927. The Revenue Divisional Officer also expressed his view that there was no prima facie evidence that the grant included both the land and the assessment. Against this order, the Executive Officer of the temple, preferred an appeal to the District Collector. The District Collector, by his order dated 2nd September, 1957, dismissed the appeal holding that the entries in the Inam Fair Register clearly showed that the inam was granted to Vannan Narayanan and not registered in the name of the temple, with the result he concurred with the conclusion of the Revenue Divisional Officer that the inam fell under B.S.O. No. 54 (1) (b) and consequently Section 44-B of Madras Act II of 1927 did not apply. The Collector also expressed the view, just like the Revenue Divisional Officer, that there was no evidence to show that the inam consisted of the land and the land revenue. Under these circumstances, the temple filed the suit, out of which the present second appeal arises, namely, O.S. No. 37 of 1958 on the file of the Court of the Subordinate Judge of Tiruchirapalli, purporting to be under Section 35 (2) (d) (ii) of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951, for the purpose of setting aside the orders of the Revenue Divisional Officer and the District Collector and for declaring that the grant was of both the warams and granted in inam for the support of the charity connected with the plaintiff Devasthanam. The first defendant, who had obtained a lease from the Devasthanam, supported the case of the plaintiff. Defendants 13 to 19 resisted the claim of the temple. They put forward several contentions, such as that the property was granted to the Vannar Community and not to the temple and therefore it belonged to them and that even otherwise the Vannar Community had acquired title to the property by adverse possession and consequently the orders of the Revenue Divisional Officer and the District Collector refusing to resume the inam were correct. They also put forward the contention that the suit instituted by the plaintiff Devasthanam under Section 35 (2) (d) (ii) of Madras Act XIX of 1951 was not maintainable. The learned Subordinate Judge of Tiruchirapalli, after elaborately going into the matter, came to the conclusion that the grant was not made to the temple though he held that the grant was for the purpose of maintaining a Nandavanam and flowers have to be given for the use of the plaint temple. He came to the further conclusion that the property belonged to the Washermen Community. With regard to the positive case put forward by the defendants, his finding was that the plaintiff could apply for resumption and re-grant, but the right to remain in possession as against defendants on. the basis of the original grant, even if the grant is to be construed to be in favour of the plaintiff, had become barred by limitation and adverse possession. With regard to the contention relating to the maintainability of the suit, he came to the conclusion that since the Revenue Divisional Officer and District Collector refused to resume the inam, no suit would lie, as such a suit had not been provided or under Section 35 (2) (d) (ii) of Madras Act XIX of 1951. Hence, by his judgment and decree dated 10th March, 1961, the learned Subordinate Judge dismissed the suit of the temple. Against this judgment and decree, the temple preferred A.S.No. 57 of 1962 on the file of the Court of the District Judge of Tiruchirapalli. The learned District Judge, by his judgment and decree dated 20th March, 1963, reversed the conclusion of the learned Subordinate Judge and decreed the suit of the plaintiff. It is under these circumstances the present second appeal has been preferred by defendants 13 to 19 in the suit.
2. Mr. T.R. Srinivasa Ayyangar, the learned Counsel for the appellants put forward the following contentions : (1) When the plaintiff-devasthanam claimed the relief of setting aside the orders of the Revenue Divisional Officer and the District Collector, it ought to have made them parties to the suit and not having done so, the suit is liable to be dismissed on that ground. (2) The present suit was not contemplated or authorised by the provisions contained in Section 35(2)(d)(ii) of Madras Act XIX of 1951, as there was no order for resumption and consequently the suit was not maintainable. (3) The grant was to the Vannar Community personally, burdened with service, and was not a grant to the temple. I shall deal with these contentions in that order.
3. As far as the contention that the Revenue Divisional Officer and the District Collector had not been made parties to the suit is concerned, the following features must be noticed : (i) Such a contention was not put forward before the Courts below, (ii) The learned Counsel though he had taken time for that purpose, was mot able to produce any authority to show that the Revenue Divisional Officer and the District Collector are necessary parties to the suit and therefore the failure on the part of the plaintiff-devasthanam to implead them as defendants in the suit was fatal to the maintainability of the suit itself. In my opinion, the contention of the learned Counsel proceeds on a misconception. Admittedly, the plaintiff-devasthanam has not claimed any relief against the Revenue Divisional Officer or the District Collector and that when the Revenue Divisional Officer and the Collector functioned under Section 44-B of Madras Act II 1927 or under Section 35 of Madras Act XIX of 1951, they were functioning as quasi-judicial tribunals and therefore it is not necessary to implead them as parties to the suit. Hence, the failure to implead them as parties to the suit does not affect the maintainability of the suit itself. Mr. R. Gopalaswami Ayyangar, the learned Counsel for the respondent, drew my attention to a Bench decision of this Court in Bheemasena Rao v. Peda Yeella Reddi I.L.R. (1955) Mad. 45 : (1954) 1 M.L.J. 384, where also the interpretation of Section 44-B was considered, arising out of a suit filed to set aside the orders of the Revenue Divisional Officer and the District Collector, but those officials were not made parties to the suit. Though the point was not raised and decided in that case, Mr. Gopalaswami Ayyangar relied on the decision merely by way of a precedent, where in another case the Revenue Divisional Officer and the District Collector were not made parties and still the suit was proceeded with and no objection to the maintainability of the suit was either taken or upheld. Apart from this decision, for the reasons I have already indicated, in my opinion, the failure on the part of the plaintiff-devasthanam to implead the Revenue Divisional Officer and the District Collector as defendants in the suit, does not affect the maintainability of the suit. Hence, I overule the first contention of the learned Counsel.
4. As far as the second contention is concerned, here again, the contention proceeds on a misapprehension. Section 44-B of Madras Act II of 1927 is practically in the same terms, as far as is relevant, as Section 35 of Madras Act XIX of 1951. Section 35 (2) (a) states that the Collector may, on his own motion, or on the application of the trustee of the religious institution, or of the Commissioner or of any person having interest in the institution, who has obtained the consent of such trustee or the Commissioner, by order, resume the whole or any part of any such Inam (Inams referred to in Sub-section (1)) on certain grounds enumerated therein. Clause (d) of Sub-section (2) states that any party aggrieved by an order of the Collector under Clause (a) may appeal to the District Collector, within such lime as may be prescribed! and on such appeal the District Collector may pass an order confirming, modifying or cancelling the order of the Collector. Thereafter, Section 35 (3) (d) (ii) provides for the filing of a suit in these terms:
The order of the District Collector on such appeal, or the order of the Collector under Clause (a) where no appeal is preferred under Sub-clause (i) to the District Collector within the time prescribed, shall be final:Provided that where there has been an appeal under Sub-clause (i) and it has bean decided by the District Collector or where there has been no appeal to the District Collector and the time fur preferring an appeal has expired, any party aggrieved by the final Order of the District Collector or the Collector, as the case may be, may file a suit in a civil Court for determining whether the inam comprises both the melwaram and the kudiwaram or only the melwaram. Such a suit shall be instituted within six months from the date of the order of the District Collector on appeal where there has been an appeal under Sub-clause (i), or from the date of the expiry of the period prescribed under Sub-clause (i) for an appeal to the District Collector where there has been no such appeal.
The contention of the learned Counsel is that a suit is provided only against an order under Clause (a), which means, only against an order resuming the whole or any part of the inam, and once there has been no order of resumption, that is, where the Collector has refused to resume the inam, no suit has been provided for under the section. There are two answers to this contention. The first answer is, if the section itself does not provide for a suit, it does not mean that an aggrieved party has no right of suit, which is available to him under the general law. So long as the section has not taken away the right, which is available to an aggrieved party, it is immaterial whether the section itself has conferred such a right or not. The second answer is, an order refusing to resume the inam, just as an order resuming the inam, will be an order of the Collector under Clause (a) of the section. In Kallalagar Devasthanam v. District Collector : AIR1940Mad811 , a Bench of this Court pointed out that the words ' may pass an order confirming, modifying or cancelling the order of the Collector ' are not intended to be confined to an order of resumption and that an unqualified right of appeal is given and if the Collector passes an order dismissing an application the District Collector can confirm it or cancel it, and as he has the power to cancel an order refusing to resume an inam, it must follow that he has the power to grant appropriate relief. This decision, with reference to the provision for and the scope of the appeal before the District Collector, will, in terms, apply to those of the suit as well. Therefore, the contention of the learned Counsel for the appellants that, since there has been no order of resumption by the Revenue-Divisional Officer or the District Collector, no suit under Section 35 (2) (d) (ii) is available, has no substance.
5. That leaves the third contention regarding the grant itself. Admittedly, the title deed has not been produced by any of the parties. The entire controversy between the parties proceeded on the basis of the extracts from the Inam. Fair Register. The plaintiff-devasthanam filed Exhibit A-1, as the Extract from the Inam Fiar Register, while the defendants filed Exhibit B-43. In Exhibit A-1 the inam was described as' Devadayam ', while in Exhibit B-43, it was described as ' Darmadayam.' The learned Subordinate Judge sent for the original and compared the same with Exhibits A-1 and B-43 to find out which of the two copies was correct. The learned Subordinate Judge, after such comparison, came to the conclusion that the description of the inam in Exhibit B-43 alone was correct and proceeded on the basis that the nature of the inam was Darmadayam. As I pointed out already, the inam itself was for the support of a Nandavanam for the use of the Pagoda of Ranganathaswami at Srirangam and that object is found mentioned under column 8 of Exhibit B-43. Under column 9 it was stated that the inam was ' Tax-free.' Under column 10 it was stated that it was ' hereditary.' Under column 15 it was shown ' In fasli 1244 Vannan Nandavanam Manager Manyam.' In. columns 16 to 20, it was shown as ' Srirangam Ranganathaswami Koil Nandavanam Inam. In charge of Vannan Narayanan.' In column 21 (remarks column) it : was stated:
This is a Nandavanam which contains tulasi, malli and other flower plants.. The Nandavanam is maintained for the use of the Pagoda. The holder also maintains a water pandal. To be confirmed under Rule 3, clause 2, Free.
It is on the basis of these entries contained in the Inam Fair Register, the nature of the grant came to be considered by the Courts below. The learned Subordinate Judge took the view that it was a grant made to Vannan Narayarian, as representing the Vannar Community, for the purpose of using the flowers in the Nandavanam to the temple of Sri Ranganathaswami at Srirangam. On the other hand, the learned District Judge came to a different conclusion, holding that the grant was. in favour of the temple itself. I have already pointed out that the title deed was, not produced by either of the parties. One other thing that has to be noticed is that under column 13 relating to 'Name of the original grantee,' nothing has-been mentioned in Exhibit A-1 or in Exhibit B-43. Therefore, a conclusion has to be arrived at on the basis of the other entries contained in Exhibit B-43. As I stated already, the case of defendants 13 to 19 was that it was a personal inam granted to the Vannar Community, burdened with service to the temple. On the other hand, the case of the temple was that it was granted for the use of the temple. Which of the said two contentions is correct, has to be determined with; reference to the said Exhibit B-43. Before proceeding further, I want to make one thing clear. The learned Subordinate Judge came to the conclusion that the grant comprised of both the warams and before the learned District Judge that was not disputed and it was conceded that the grant comprised of both the warams. Consequently, whoever might have been the grantee and for whatever purpose it was granted, before me it was the common case of the parties that the grant comprised of both the warams. Then the only question is, was the grant for the benefit of the temple or a personal grant to the Vannar community, burdened with service. In my opinion, the only conclusion that can flow from the various entries contained in the Inam Fair Register is that it is not a personal inam granted to the Vannar Community, burdened with service, but it is only an inam for the benefit of the temple. No doubt, there is the expression ' Dharmadayam ' in column 2 and the expression ' Hereditary ' in column 10. But, neither the use of the expression ' Dharmadayam ' nor the use of the expression ' Hereditary ' is conclusive of the fact that the grant was only a personal grant to the Vannar Community. On : the other hand, there are certain features, which definitely indicate that the grant-was for the benefit of the temple. The first feature is the contents in the Remarks column 21. I have extracted the same already. It is said ' This is a Nandavanam which contains tulasi, malli and other flower plants.' That means, that the very Naridavanam itself was the subject-matter of the grant and it was not a grant of' some other property in support of the Nandavanam or for the maintenance of the Nandavanam. Further, there is absolutely nothing to indicate in any of the entries in the Inam Fair Register that Vannan Narayanan, who was said to be in charge of the Nandavanam, had any beneficial interest in the grant. In Hindu Religious Endowments Board v. Koteswara : (1937)2MLJ413 , a Bench of this Court pointed out:
Where specified charitable payment 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 far as the present case is concerned, there is no question of paying any part of the income from the subject-matter of the grant for the benefit of the temple. On the other hand, the entire subject matter of the grant is itself a Nandavanam for the purpose of rearing flowers to be offered to the temple. Consequently, there is absolutely no scope for drawing any inference of personal benefit in favour either of Vannan Narayanan or of any member of the Vannar Community. As pointed out by the Supreme Court in Beemasena Rao v. Pedda Yella Reddi : 1SCR339 :
The nature of a personal inam burdened with service is that it is meant for the individual to whom it is granted, though the individual is required to perform some service to the temple also.
In this case there is absolutely nothing to show, from the Inam Fair Register, that inam was meant for the benefit of the individual Vannan Narayanan or the community of washermen represented by the said individual. A Bench of this Court in the decision already referred to, namely, Bheemasena Rao v. Pedda Yella Reddi (1954) 1 M.L.J. 384 :I.L.R. (1955) Mad 45.pointed out, with reference to the word ' regrant ' occurring in Section 44-B:
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 was virtually and susbtantially to the institution to which the service has to be rendered.
Therefore, taking into account the entries contained in columns 8 and 16 to 21 of Exhibit B-43, though the grant was not directly to the temple, it was virtually and substantially to the temple, since the entirety of the subject matter of the grant was to be maintained as a Nandavanam for rearing flowers for the use of the temple. This conclusion of mine that the grant indicated by Exhibit B-43 is not a personal -grant to the Vannar Community, burdened with service, but a grant of a religious and charitable nature, gets support from the fact that the inam itself was confirmed under Rule 3, clauses of the Rules for the adjudication and settlement of the inam lands of the Madras State.
6. The learned Subordinate Judge has relied on the litigations that took place between the descendants of Vannan Narayanan and the other members of the Vannar Community and on the fact that in the Property Register, required to be maintained by the plaintiff-devasthanam under the provisions of the Hindu Religious and Charitable Endowments Act, this property was not shown as the property belong to the plaintiff-devasthanam and also on the fact that the Commissioner of the Hindu Religious Endowments Board himself had issued notices for payment of contribution to the Vannara Matam, for coming to the conclusion that the grant was not for the benefit of the temple, but for the benefit of the Vannar Community. As I pointed out already, the reason for the Devasthanam not showing the grant as its own property in the Register maintained by it, may be, that the grant was not directly to the temple and that may be the reason again for the Commissioner demanding contribution from the Vannara Matam. As far as the litigations that went on between the descendants of Vannan Narayanan and the other members of the Vannar community are concerned, admittedly, the temple was not a party to these litigations and therefore no inference adverse to the temple can be drawn from these litigations. I may point out here that the learned Subordinate Judge committed an error in confining his attention to the fact whether the grant is to the temple or to the Vannar Community. For the grant to be for the benefit of the temple, it need not necessarily be directly to the temple itself. As B.S.O. No. 54 (A) (i) points out, inarms may be granted for the support or maintenance of Hindu Religious institutions, or they may be granted for the performance of a charity or service connected with Hindu religious institutions. Once the grant satisfied this description, it is immaterial for the purpose of the case of the plaintiff here whether it was granted to the religious institution itself or to somebody else for the purpose of performing service or charity in the religious institution. Consequently, I am of the opinion that the grant in this case, though not directly to the temple, is a grant made for the support of the charity connected with Sri Ranganathaswami temple, namely, for the maintenance of a Nandavanam for rearing flowers to be offered to the temple.
7. In view of this conclusion of mine, the second appeal fails and is dismissed. However, I must point out that in view of the limited nature of the scope of the suit instituted under Section 35 (2) (a) (ii) of Madras Act XIX of 1951, no other questions except these, namely, whether the grant was of both the warams and whether the grant was for the support of a charity to be performed in the plaintiff Devasrhanam, can arise in this suit. Admittedly, this is not a suit for recovery of possession of the properties from the defendants. Nor has the plaintiff Devasthanam prayed for an injunction to the Collector or the District Collector to resume the inam and regrant the same to the temple. Under these circumstances, the questions whether the temple has still title to the property or has lost its title to the property, or whether the right to resume the inam is barred by limitation or not, or whether the defendants have acquired title to the property by adverse possession or not, do not arise for determination and the Counsel on both the sides arc agreed on this. Consequently, while dismissing the second appeal, I vacate the findings of the Courts below with regard to such questions and the only findings that are relevant for the disposal of the suit and appeal and which I confirm are that the grant was of both the warams and the grant was for the support of the charity, namely, the maintenance of a Nandavanam for rearing flowers for offering to the plaintiff Devasthanam. There will be no order as to costs in the second appeal.