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Vadlamannaty Bala Tripura Sundaramma Vs. Secretary of State and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1928Mad282
AppellantVadlamannaty Bala Tripura Sundaramma
RespondentSecretary of State and ors.
Cases ReferredSecy. of State v. Gulam Mahaboob Khan Saheb
- ramesam, j.1. this appeal arises out of a suit by two members of the muhammadan community (i) for a declaration that the resumption of the suit inam by the government and conversion into a ryotwari land is not binding on the plaintiffs and other muhammadan members of the community: and (2) for a declaration that the two mortgages, dated 16th march 1914, which were executed in favour of defendant 2, by defendants 3 to 7 and grandmother of the 8th are in' valid and cannot bind the suit property. defendant 1 is the secretary of state for india in council and defendant 2 is the mortgagee.2. the history of the suit inam may now be briefly stated. the earliest document we have got on record is an extract from oakes' inam register, ex. x prepared in 1797. this was a register of inams probably.....

Ramesam, J.

1. This appeal arises out of a suit by two members of the Muhammadan community (i) for a declaration that the resumption of the suit inam by the Government and conversion into a ryotwari land is not binding on the plaintiffs and other Muhammadan members of the community: and (2) for a declaration that the two mortgages, dated 16th March 1914, which were executed in favour of defendant 2, by defendants 3 to 7 and grandmother of the 8th are in' valid and cannot bind the suit property. Defendant 1 is the Secretary of State for India in Council and defendant 2 is the mortgagee.

2. The history of the suit inam may now be briefly stated. The earliest document we have got on record is an extract from Oakes' Inam Register, Ex. X prepared in 1797. This was a register of inams probably prepared with a view to the passing of Regulation 31 of 1802, but, whatever it may be, it describes the suit land merely as an inam, fixes a certain amount of kattubadi in kind on it and shows that the inam was granted by one Mustapha Khollikanudu, probably a representative of the Moghul sovereigns. The date of the grant was Hijri 1108. The grantee is described as Sheik Ibrahim and the person in enjoyment in 1797 as-great-grand son, Gulam Hussain. The next document on record is Ex. A. This is the inam register of the village of Gandram. The suit inam is situated in the village of Ibrahimpalem which is a hamlet of Gandram. Col. 2 describes the grant as endowment to a religious institution. Col. 8 is:

Devadayam granted for the performance of certain rites in the mosque. The ceremonies are duly kept up.

3. Col. 9 shows that the annual kattubadi changed to Rs. 32 from 1852. Col. 10 describes the inam as hereditary. Col. 11 shows that the grant was made in Hijri 1137 or A. D. 1724 by Sidni Etida. Khan of Mahomed Shah Gazhi Padshah. Mahomed Shah is probably the Emperor of Delhi who reigned from 1719 to 1748 and the other person is his local representative. In Col. 12 there is a list of documents. The first is the sanad granted by Etida Khan in Hijri 1137 (A. D. 1724). The third is sanad granted by Kuli Khan mentioned in the Oakes Register. The second is another sanad in Persian. The others-are dumbalas and checknamas, i. e., orders-addressed to village officials. Col. 15 refers to the accounts of 1797, i. e., the Oakes Register. Cols. 16 to 18 describe the person in enjoyment in 1859 as Haji Sahib of Nagaram, the fifth in, descent from the original grantee. Cols. 19 and 20 give the details of his family. Col. 21 is the recommendation of the Special Assistant. It says:

This inam is an ancient one having been granted in H. 1137 or A. D. 1124 for the purpose of keeping up certain ceremonies in the mosque of Gandram. The original sanad was given to Mulla Sheik Ibrahim, in whose family the inam has all along been enjoyed and the rites fully performed.... It is recommended that the inam be continued for the?purpose originally contemplated subject to the payment of the annual kattubdi of thirty-two rupees (Rs. 32).

4. Col. 22 is the order of the Inam Commissioner 'continued accordingly.' In 1874 Haji's son Dada Sahib granted a cowle of the inam for a period of 22 years to Mirza Mahomed Taki Sahib. That cowle was transferred to one Tadu Sahib in 1884. In 1886 that cowle right was surrendered by him for a sum of Rs. 1,746. For this and some other item of consideration the inam was mortgaged for Rs. 1,926 on 16th July 1886 to the said Thadu Sahib under Ex. 4. Ex. 4-a is the surrender of the cowle right. Ex. 5 is a deed of mortgage with possession dated 23rd August 1888 to the same Thadu Sahib. This mortgage right was transferred by Ex. 5-a to one Meerza Sahib. It also shows that the title-deeds were with a sowcar. Exs. 9-a, 9-b, and 9-d are muchilikas obtained by Shafi, son of Mirza. Ex. 6 is a sub-mortgage by Shafi dated 28th June 1894 in favour of one V. Venkataramayya, husband of defendant 2. Ex. 9-c is a muchilika taken by him soon after. Ex. 9 is another muchilika taken by him in 1897. In December 1897 Shafi transferred his mortgage right to defendant 2. It is also mentioned that the inam patta remained with the sowcar. The sub-mortgage in favour of defendant 2's husband and her light as assignee were apparently consolidated by Ex. 7, dated 15th February 1903. This is also a mortgage with possession. All these documents ranging from 1886 to 1903 described the suit land as ancestral property of Dada Sahib and his sister. Some time in 3.908 the revenue officers made enquiries as to whether the service was being done in the mosque. Ex. 3 is a statement by the karnam before the Tahsildar in November 1908. Ex. 3-a is a statement of Dada Sahib. The Tahsildar's report to the Collector is Ex. 2. The Collector reported to the Board of Revenue on 7th April 1909. The Board of Revenue sanctioned resumption of the inam by Ex. C, dated 30th April, and it is acted upon as shown by the subsequent correspondences in June, August September, and November 1909: (vide Ex. B). Ex. 12-a is a petition by Dada Sahib requesting that the resumption may be cancelled and that the inam may be continued as inam. In the same year the mortgagee obtained a decree for possession on the basis of Ex. 7. Ex. 7-a and 7-b are the decrees and judgment. In about August 1910 the full assessment of Rs. 461-10-1 was collected from Dada Sahib by Government and the suit notice was issued by Dada's vakil: vide Ex. 12. In 1912 some Muhammadan residents of Ulavalapudy and Nagavaram, two neighbouring villages having mosques of their own, petitioned to the Board of Revenue for the cancellation of the resumption. The Board referred it to the Collector, by Ex. F. The Tahsildar's report to the Collector is Ex. D and it was referred to the Divisional Officer. His final report in August is Ex. J. The Board of Revenue called for a fresh report as to whether there was any District or Taluk Committee to whom the inam may be assigned, by- Ex. E. There was a report to the Board of Revenue and a further reference, Ex. H. The Board of Revenue finally declined by Ex. G to reassign the inam in March 1913. In March 1914 Ex. 8 was executed by defendants 3 to 7 representing 7/8ths share for Rs. 13,670 and another mortgage-deed was executed by the grandmother of defendant 8 representing l/8th share in the inam. The present suit was filed on 3rd April 1919. The Subordinate Judge decreed the suit. Defendant 2 has filed this appeal. There is no appeal by defendant 1 who is herein arraigned as a respondent.

5. The first point arising for consideration is what is the nature of the inam. It has been strenuously contended by the appellant that the inam was granted to the original grantee as a service inam, that is as a grant to him burdened only with the condition of rendering certain services, namely the performing of certain rites in a mosque. On the other hand it has been contended by respondents 2 and 3 that the grant was to the mosque itself and that the inam belongs to the mosque. Before discussing the documents bearing on this question it will perhaps be convenient to refer to some of the cases cited by both the parties and which may well be a guide in the construction of such grants. These cases show that there is a well-understood distinction between a grant to a religious institution such as a temple or a mosque and a grant to some person on condition of his rendering services to a religious institution, such as the archaka of a temple. It may be a nice distinction to find under which class a particular grant falls. An example of such a grant to a servant of the temple is M. Sarayya v. V. Vydyanathan [1915] 1 M.L.W. 490. The grant there was to a dancing-girl of a temple. There the title-deed was given to the dancing-girl in contrast to the other title-deeds which were issued to the manager of the temple, and the title is conditional on the fulfilment of the terms of the grant. 'So long as the conditions of the grant are fully fulfilled' is the usual language in all the title-deeds of this kind. Srirangachariar v. Pranatharthihara Chariar [1915] 2 M.L.W. 632, was a grant to a person performing the service of acharya purusha in the Tirupathi temple. The title-deed describes the land as 'devadayam' or 'pagoda service inam' for the support of the pagoda called the service of 'acharyapurusha' in the suit temple. It was held that the grant was not to the temple, but it was a grant to the temple servant on condition of performing the service of acharyapurusha in the temple, and, as it did not belong to the temple, there was no trust in respect of which a scheme' suit under Section 92 can lie. Muhammad Hussain Sahib v. Abdul Rahim A.I.R. 1922 Mad. 8 is the next decision I may refer to. There the holders of the inam divided the inam land between themselves. The suit was for a declaration that the division was illegal and that the land belonged to the mosque. It was held that the grant was. not to the mosque but to certain persons on condition of their rendering services in the mosque, namely, the proper upkeep of the mosque and other services. One of the inam registers in that case described the land in Col. 2 as devadayam.' In Col. 8 it was said to be for the support of the great mosque at Guntur. In the other inam register it was said to be for performing certain services in the mosque. One would say that prima facie, where the grant is for the upkeep of the mosque, it was intended that the income of' the land granted should belong to the1 mosque, and, so far as one of the items there is concerned, one might perhaps say that the land belonged to the mosque but not the other which was given for service; but the District Judge found that, both were treated alike throughout. Spencer, J. who delivered the judgment of this Court also held that they were not grants to the mosque. I agree with his judgment. In Sikkandar Rowthen v. Secretary of State [1917] 5 M.L.W. 401 the inams are classified as 'devadayam' and the grant was for the support of the mosque. The grantee was described as the mosque itself. The holders of the inam were described as trustees. In the inam register both the original inamdar and the 'present enjoyer' are given as the mosque and the recommendation was that the inam should continue as long as the mosque existed.

6. The decision was that the land belonged to the mosque. That case illustrates what one should expect if the grant was to the mosque. No doubt, if all the entries indicate that the grant was for the mosque it would be a very clear case; but if not one of such indicia as in that case is present, and there is a total absence of the indication of ownership of the mosque, the mere use of the word 'devadayam' does not necessarily show that the grant was to the mosque, as the other cases cited by me show. In Sikkandar v. Secretary of State [1917] 5 M.L.W. 401. Srinivasa Aiyangar, J. says about ' devadayam' that by itself it is said to be prima facie strong proof. It is clear that the word 'devadayam' indicates a gift for religious purposes, but does not necessarily come to anything more. The reason is in that the British Government when it dealt with inams in 1859 appointed an Inam Commission for enquiring into the genuineness of the inams so that they may be recognized and confirmed or not as the cases require. They dealt with both classes of cases, namely, the grants to temple and mosques and grants to servants on condition of rendering services in temples and mosques together. From their point of view they were all connected with Hindu or Muhammadan religion and their policy was not to impose quit-rent on them, but to recognize and continue the inam so long as the conditions of the grants were being fulfilled, that is, in the case of grants to mosques or temples, as long as the institutions themselves lasted, and, in the case of grants on condition of services, as long as the services continued to be performed. Title-deeds were accordingly issued with the clause

to be held as long as the conditions of the grant were fulfilled.

7. Both being directly or indirectly connected with religion, both classes are indiscriminately described as 'devadayam.' Therefore the word ' devadayam ' does not conclusively show that the grant is a grant to the temple or mosque itself: vide Rule 3, Inam Rules. In Srinivasa Charyulu v. Pratyanga Rao A.I.R 1921 Mad. 677 it was held that the grant was not to the archaka but to the temple itself. In that case the grant was for the nivadyam and deeparathana which are expensive items and expenses were to be met out of the income of the inam. The sanad was in favour of the Swamiluvaru and not in favour of the archaka. The inam register showed that the grantee was Sri Venkateswara Swami and the title-deed was issued to the manager for the time being of the temple. The inam was said to be for the support of the temple. In the face of these unambiguous circumstances the learned Judges held that the conduct of the archaka, in appropriating the surplus income could have no weight in the matter and reference was made to the Attorney-General v. Master Warden & Co. of the Wan Chandler's Co. [1873] 6 H.L. 1. One sanad Ex. D in that case purported to be exclusively for archaka service in contrast to the other sanad which was for the support of the temple. In Seshadri Reddi v. S. Subramania Ayyar A.I.R. 1923 Mad. 163, Spencer and Devadoss, JJ. held that though the land there was described as ' devadayam' or pagoda kandrigainas, and though the title deed was granted to the manager for the time being of the pagoda and though the later documents described the inam as 'devadayam,' the land belonged to the original grantee, because the sanad stated that he was to enjoy the property and it was a grant to him burdened with an obligation of doing certain services in the temple and all surplus left after the performance of the services belonged to the donee and his heirs. In Muhammad Esuf Sahib v. Abdul Sathar Sahib [l919] 42 Mad l61, the learned Judges before whom the case came up, Wallis, C.J. and Spencer, J. differed. The case then came up before a Bench of three Judges. All the three Judges expressed their opinion on the nature of the inam. Ayling, J. says:

In the absence of the parwana we have to look to the record in the inam register and the evidence of user.

8. He then points out that the inam was a religious endowment for the establishment and upkeep of a mosque and various services therein.

9. Kumaraswami Sastri, J. points out that the inam was for the purpose of erecting a masjid and for various other services and says: ,

It does not appear that it was the intention of the grantor that the trustee should obtain any personal benefit or that he should appropriate any portion of the income of the land.... The persons in possession are described as managers of the masjid.

He also expressly points out that the words 'religious endowment' and 'manager of the masjid' though they may be good evidence in favour of the institution are not conclusive. With this statement of his I entirely agree. He then says that the matter is put beyond doubt by the words 'usage of the institution' as proved by the evidence in this case. In Dost Muhammad Khan v. Hassarath Kibulae Sayyad : AIR1927Mad599 , Odgers and Jackson, JJ. held that the original grant discloses no trust and that there was no grant to the mosque and that the services were rendered to the Durga and mosque out of respect for the founder. They so held in spite of an entry in the inam register 'for the support of the Durga and mosque.' The case in Kolandai v. Sankara [1882] 5 Mad. 302, arose under the Pensions Act and it was held that the grant was for the maintenance of a religious endowment although beneficial to the family by whom the endowment was administered. It was the case of a Matam service inam held for the support of the of the grantee's family and of the Matam. That case cannot help the respondent Sathianama Bharathi v. Saravana Bagi Ammal [1895] 18 Mad. 266, was also a case of a Mutt, namely, Sankara Bharathi Mutt. One of the parties was performing puja or worship in a temple called Sankara Bharathi Swami Koil. It was observed that the evidence did not show that the village was divided subject to the obligation or that any portion of the village was set apart as trust property and the rest as partible property, and that the words 'from generation to generation' meant only absolute estate. The last two cases are cases of Mutts, these Mutts being somewhat different in their nature from temples and mosques. In Muhammad Jafar v. Muhammad Ibrahim [1901] 24 Mad. 243, it was found that the inam was the source from which the expenses of the mosque had been mainly defrayed and, therefore, it was held that it was an inam belonging to the mosque. In Abdulla Sahib v. Hyder Beg Sahib [1919] 10 M.L.W. 135, the grant was for the expenses of lamp oil in the mosque. Wallis, G. J., relied on three circumstances and held that the grant was in favour of the mosque. (1) The grantees were described as servants of the mosque; (2) they were not all one family and it is unlikely that they would hold as tenants-in-common and (3) all later treatment of the inam was an endowment to the mosque itself. In Muhammad Kadir v. Ghulam Muhammad Ali 28 Ind.Cas. 934, the order of the Government in 1882 shows that the inams which were endowed to the mosque were to be enjoyed by mutavallis. I do not think it useful to refer to the two Bombay cases cited by Mr. Ganapathy Iyer as they merely show that the use of the words 'from generation to generation' does not make the grant a private grant.

10. In A.S. No. 38 of 1920, neither Judge relied on the word 'devadayam' or made any reference to it. Wallis, C.J. pointed in it that the inam register showed that the title-deed was to be issued in the name of the pallivasal or mosque. The result of the discussion of the above cases may be thus stated:

(1) As the British Government were dealing favourably with inams connected with the Hindu and the Muhammadan religions, whether grants to temples and mosques, or grants to officials and servants on conditions of rendering certain services in such temples and mosques, both were described as 'devadayam' and the use of the word is not conclusive in favour of the temple or mosque itself, where the question is whether it is a grant to the temple or to a temple servant, though it may be some evidence along with other circumstances; but it is of very great weight where the claim of private property is set up.

(2) Where the grant is made to a person in the capacity of mutavalli, manager, superintendent, dharmakartha, or even servant of the mosque or temple, and where it does not appear that there is some other trustee, it may be regarded as a grant to the temple or mosque itself.

(3) Where it appears that a substantial part of the income goes to the benefit of the institution, as for the erection of a building or for its upkeep and repairs, or such other things, the grant may be considered as a grant to the institution itself, even though some surplus may be used by the trustees for their own maintenance.

(4) Where none of the above indicia, appears, that is, where the grant does not show that it was granted to a temple or mosque, nor describes the grantee in the capacity of trustees, manager etc., and where it does not appear that any portion of that income that may be considered as substantial has gone to the benefit of the temple or mosque, then in such a case it must be treated as a grant to the grantee named (persona designata) and, if services are mentioned, it is a grant for service.

11. In the present case we may ignore the Oakes Register which makes no mention of any mosque and which, therefore, is entirely in favour of the appellant. The inam register mentioned a mosque, but it does not describe the grantee, Sheik Ibrahim as mutavalli, superintendent or manager. All that we have got is the word 'mulla' added to his name. 'Mulla' is defined in Wilson's Glossary and Maclean's Manual, Vol. 3, as a learned man. This obviously is the etymological meaning, being the same as moulvi or moula, but it has also got the secondary meaning of a village schoolmaster or a person in charge of a mosque Mr. Ganapathy Iyer could not mention to us any case where the word 'mulla' is used or considered equivalent to trustee'. Even if Sheikh Ibrahim in this case had charge of a mosque of which there is no evidence, the language is quite consistent with the grant being made to him as he is a learned man for his maintenance. It is remarkable that though in Col. 8 of the Inam Register it was described as for the purpose of certain rites, the nature of these rites was not given, and to this day remains vague, indefinite and uncertain. There is some oral evidence in this case that by rites was meant lighting of lamp, feeding of fakirs during Mohuram etc., but as I will later on show, the oral evidence is practically worthless. Most of it relates to recent usage, that is, after resumption though one or two old persons purport to give evidence for a longer time. The inam title-deed which remained with the sow-car could not unfortunately be produced by anybody.

12. The Subordinate Judge is wrong in thinking that it must have been taken away by Government from Dada Khan and sent to the Board of Revenue. The heading of Col. 8 is 'if for service to be stated whether the service is continued,' and under the column, we have got the statement 'the ceremonies are duly kept up.' This looks as if it is an answer to the heading which requires information whether the service is continued and as if it implies that the performance of ceremonies is the service. There is nothing in the documents, ignoring the oral evidence as useless, to show that the rites meant benefit to the smallest extent in pecuniary shape to the mosque. For ought, we know, the mosque might have been built otherwise than with the funds of the inam and did not get pecuniary benefit even of a pie's worth from the income of this inam. In Col. 21 we have got 'for the purpose of keeping up certain ceremonies in the mosque 'not' for the upkeep of the mosque.' Lower down we have 'in whose family the inam has all along been enjoyed and the rites duly performed.' Here again the statement is not that the mosque is being properly kept up, but that the family has discharged its obligation by performing the rites in the mosque and are enjoying the lands. Again the inam register, being, thus not clear in favour of the mosque and the title-deed not being available, it is permissible to look at the usage or user. We have got the fact that from 1874 up to 1909 the land was always described as ancestral property and dealt with as private property without any voice and protest being raised by any of the villagers or anybody else. Even when resumption proceedings were started it was only for the purpose of seeing whether the service was duly performed. Ex. 3 refers to a mosque service inam. Ex. 3-a, statement of Dada Saheb says:

There is a mosque covered with palmyra leaves. It has no door or door-frame.... We are performing namas there. The Sahibs of Nagavaram and Valavolpodi do not perform namas there. We, i.e., the members of our family, are performing. Besides, people passing that way perform namas.... I am putting light in it. Though there is no door or doorframe, light keeps burning.

13. This statement shows that the semblance of a mosque or a bare shadow of it existed as justification for the enjoyment of the inam and the so-called mosque got no benefit from the inam. Ex. 2, Tahsildar's letter, opens by the words 'regarding the mosque service inam of Gandram.' In para. 2 it says: for the purpose of keeping up certain ceremonies in the mosque at Gandram.' In para. 3 it says: 'It is not known what the ceremonies referred in the inam fair register are.' After resumption Dada Saheb sent a petition, Ex. 12-a. Even in this petition not even the faintest suggestion was made that the inam belonged to the mosque itself. On the other hand the word ' service ' was used in seven? different places. In para. 2 the grant was described as 'service inam.' In para. 3 the service was referred to as lighting only. This is repeated in para. 5,, ' lighting is the only service.' Para. 6 also refers to lighting service. Para. 10 says ' the service relative to which the petitioner has been performing without fail.' The suit notice, Ex. 12 opens by the words ' There is an ancient service' inam attached to the masjid.... The service is only lighting in the masjid.' It is clear that the feeding of the fakirs referred to in the oral evidence is a later concoction. In the petition of the members of the community, Ex. 1,. they say:

For the performance of certain rites in the mosque and for illuminating it at the time of festivals.... The usual rites are properly performed in the mosque.... There was no complaint.... about the discontinuance of the services in it.

14. In para. 2 they says:

He never said that the services were not either rendered in the mosque....

15. In para 3 they say:

The inam was originally granted to perform certain rites and services in a religious institution. If those rites and services are not properly rendered in the institution a notice should have been given to the leading members of the religion.... He has not been pleased to examine even one of the members of the Muhammadan community, who alone can know about the performance of the services, or other services in the mosque....

16. In para. 4 they say:

The usual ceremonies and services are properly performed in it....

17. Thus, even after the resumption persons who were anxious to get the resumption cancelled were still describing it as service inam The Tahsildar who reports in Ex. D in favour of the cancellation of the resumption in 1912 also says that the service is being done. Here I may refer to one document, Ex B. It is an extract from the B register of the year 1907. This document purports to reproduce the inam register in Col. 12 The heading of Col. 12 is not properly printed. The telugu is ' name of the present inamdar ' as entered in the inam register, and under it mentions Dharmakartha Haji Saheb. The word 'dharmakartha' is an obvious and unjustified addition to the inam register. A document which is so recent as 1907 is worthless. The Subordinate Judge practically relies upon this document. 1 think that the inam was only a service inam granted to Sheik Ibrahim and his descendants in consideration of his learning for doing so he nominal rites in a mosque but practically for his maintenance. It was confirmed at the inam settlement on condition that the services should be continued and the title-deed must have contained some clause, as in all such title-deeds, ' so long as the conditions of the grant are fulfilled.' If the services are not properly rendered, the Government have the right to resume. I think the Board nightly resumed it in 1909. After the resumption the Muhammadans of the surrounding villages rebuilt the mosque which originally had not even a shed but a roof of palmyra, leaves. They put up a tiled roof and began to create officers with technical names in the Muhommadan religion, such as Mouzzin, Peish inam, Khanf, etc. In the oral evidence we first hear of these names. They are not referred to even in the plaint. The word ' mutavalli ' was for the first time used in Ex. 12-a and, in spite of its use, the word ' service ' was mentioned in connection with the inam. The village of Ibrahimpalayam, in which the mosque is situated, became dilapidated; see Ex. D. It is in the midst of wet fields. There is no direct road leading to it but only a footpath. Looking at these facts it is clear that the oral evidence referring to the feeding of fakirs is a myth It is not mentioned whether the fakirs were fed in the village or near the side of the mosque. But if lighting is the only service we have nothing to do with the feeding of the fakirs. A four-walled structure without any roof or window or door-frame was used as the pretence of a mosque all these years to justify the enjoyment of the inam by Dada's family. We cannot now say how long back this state of things lasted, but for the last 40 or 50 years it must have been so.

18. Now, when the Government resumed it in 1909, and actually collected the assessment of Rs. 461-10-1 under protest, the cause of action accrued to Dada Sahib and other holders of the inam for cancelling the resumption. In my opinion the period for such a suit is one year under Article 14. In Secy. of State v. Gulam Mahboob Khan [1919] 42 Ma. 673 their Lordships held that Article 14 did not apply to that case, as the resumption in that case was made not on the ground that the services were not performed or the mosque was not kept up, but on the ground that the endowed lands were alienated which was not one of the grounds on which the inams could be resumed. There the inams were granted for the maintenance of the mosque itself, and, as it was a service inam, unless the mosque itself was not kept up, there was no ground for resuming the inam. Mere alienation of the endowed lands was not a proper ground for resumption. That being so, it was held that the resumption was illegal and totally ultra vires and Article 14 did not apply. In the first place, it seems to me that, where Government purported to act under powers reserved to them under the terms of the grant, though they may have acted erroneously in the interpretation of its terms or in finding on facts which justify the resumption, the act was intra vires and not ultra vires and the act of resumption cannot be regarded as a nullity. On this ground I doubt the correctness of that judgment, but, assuming that the case was correctly decided, that case is clearly distinguishable from the present one where the non-performance of service is the ground on which resumption was made and it is a correct ground under the terms of the grant. But, even if Article 14 is not the proper article to apply, certainly Article 120 applies to a suit for a declaration. This is not denied by the vakil for the respondent though he would try to get over it by postponing the cause of action up to December 1914, when the ryotwari patta was said to have been issued to defendants 3 to 7. Now I do not see what a ryotwari patta has got to do with this business. The inam was resumed in 1909. Ryotwari assessment was imposed upon it and collected in 1910. The party felt aggrieved by it and gave notice of suit in 1910. If this was not a suit for a declaration and for cancellation of the resumption based on the cause of action of 1909 and 1910, I am. unable to see what else it would be.

19. The suit being brought more than six years after 1910, is obviously barred by limitation and ought to have been dismissed. Mr. Ganapathy Ayyar argues that so far as the defendant 2's mortgages are concerned, the cause of action against them dated only from the dates of the mortgages, namely March 1914, and the suit, so far as the second declaration is concerned, is not barred. If the plaintiffs submit to the resumption, but question the mortgages on grounds peculiar to mortgages only-and apart from the resumption, this contention is right and is conceded by the learned vakil for the appellant-if, for instance, we hold that the grant was a grant to the mosque itself and that even after resumption the trust re-attached itself to the land in the hands of defendants 3 to 7, even though it is converted into a ryotwari land, on the line of reasoning adopted in Muhammad Esuf Sahib v. Moulvi Abdul Sathur Sahib [1919] 42 Mad l61, it may be that the suit for declaration of the mortgage is not barred. We are not to be understood as agreeing with the line of argument adopted in Muhammad Esuf Sahib v. Moulvi Sathur Sahib [1919] 42 Mad l61. We feel some difficulty in applying Section 88, Trusts Act, to a case where, after resumption, a service inam is regranted availing himself of his position as trustee. There is also a good deal of force in the observation of Sadasiva Aiyar, J, in Rajarajeswari Dorai v. Arunachalam Chettier [1913] 38 Mad. 321, where he had held that an obligation in the nature of a constructive trust cannot attach under Sections 85 to 88, Trust Act, unless a declaration is obtained to that effect. It might also be said that, where no such declaration is obtained, private persons dealing with the original holders on the footing of the re-grant are bona fide vendees or mortgagees as the case may be; and if it were necessary in this case to rely on this line of argument a fresh finding on the question whether defendant 2 was a bona fide mortgagee for consideration, would have to be called for. But it is unnecessary to follow this line of reasoning. We hold that the suit inam was only a service inam and did not belong to the mosque. The services were put an end to by the resumption and there is nothing to re-attach to it after the grant of the ryotwari patta to the defendants 3 to 7. Defendant 2 inertly claims as mortgagee from them and stands in their shoes to the extent of defending her right as mortgagee. She claims through them the mortgage in question, not on some ground peculiar to it, but as an interest derived from defendants 3. to 8 on the footing that they hold the inam as private property. Defendant 2, therefore, defends her mortgage on the ground that the resumption was valid and put an end to obligations of service. The cause of action for any suit for declaration, even as against the mortgagee, must therefore date from 1910 and, therefore, the suit is equally barred as against defendant 2.

20. There is another ground on which the mortgages in favour of defendant 2 must be at least partially upheld. They were in possession of the suit inam for more than 12 years up to 1914 though, no doubt, it was interrupted after the decree in 1909. She has thereby prescribed and obtained by prescription the interest of the usufructuary mortgagee for the principal sum of Rs. 2,935-9-4 and interest thereon (vide Ex. 7), but not for the other amount mentioned in Ex. 7. This is con-ceded by the respondent, but we are also holding that the mortgages are fully valid on the ground that the resumption was perfectly valid and converted the property into an ordinary ryotwari property.

21. In the result the appeal is allowed and the plaintiffs' suit dismissed with costs throughout as against defendant 2. As the Government have not appealed it is unnecessary to award them any costs in either Court. But the decree against them is vacated as the grounds of our judgment are common to the Government and the appellant.

22. The injunction against defendant?2 restraining her from executing her mortgage decrees, if any, will be dissolved.

Cornish, J.

23. I have come to the same conclusion. The substantial question in this appeal is whether the suit lands are the subject of a personal service inam, or whether, as the respondents have succeeded in asserting in the lower Court, these lands are the endowment of a local mosque. The original grant is not forthcoming, so the question has to be determined by the construction of the documents produced: Ex. X being the extract from Mr. Oakes Register dated A. D. 1797; Ex. A, the extract from the Inam Commissioner's Register dated 1859; and Ex. B, the extract from the Permanent Register of Inams in the Kistna District prepared in 1907. Ex. X described the grantee as Sheik Ibrahim, ' states that the person then in enjoyment was Gulam Hussain, who was, we are told, the great-grandson of the original grantee, Sheik Ibrahim; and particularizes the property as 'Inam.' In Ex. A under the heading in Col, 2, ' general class to which the inam belongs, ' it is stated endowment to a religious institution. ' In Col. 8, under the heading Description of inam. If for service it is to be stated whether the service is continued, ' appears this statement: ' Devadayam granted for the performance of certain rites in the mosque. ' In Col. 10 the tenure is described as 'hereditary. ' In column 13 the ' name of the original grantee ' is given as ' Mulla Sheik Ibrahim. ' In the column requiring particulars of the present owner, his name is given as Nagaram Haji Sahib, and in Col. 20 appear particulars of his family. Then in Col 21 it is stated:

This Inam is an ancient one having been granted in Hijri 1137 or A. D. 1724 for the purpose of keeping up certain ceremonies in the Mosque at Gandram.

The original sanad was given to Mulla Sheik Ibrahim in whose family the inam has been all along enjoyed and the rites duly performed.

24. In Ex. B the prefix ' Dharmakartha ' has been added to the name of the then inamdar. No explanation is given for the insertion of this word, and as the document is of so recent date, I do not think that it can be taken into serious consideration.

25. Now, I think it may be taken as established by the cases cited in the argument and reviewed in my brother's judgment' that, where it appears that the grant was intended primarily for the benefit of the grantee, and only incidentally for the benefit of the religious institution with which the grantee may be associated, the grant may be construed as conferring on the grantee a personal service tenure On the other hand, it may appear from' the terms of the grant, as well as from the purpose for which the grant is made, that the grantee was intended to take the benefit in trust for the religious institution. In the present case the grant is to an individual for the declared purpose of performing rites and ceremonies in a mosque. On the face of it, a grant of this sort must, I think, be deemed to be personal to the grantee, subject to the condition of performing such rites and ceremonies in the mosque as he may think necessary or proper.

26. But it has been contended that the description of the Inam as 'Devadayam' should be taken as showing that the grant was made to the mosque. The meaning of this word has been discussed in Muhammad Jafar v. Muhammad Ibrahim [1901] 24 Mad. 243 Sikandar Rowthan v. Secy. of State [1917] 5 M.L.W. 401 and Pacha Saheb v. Muhammad Ruhimuddin Saheb A.I.R. 1924 Mad. 491. These cases certainly support the view that the use of the word devadayam ' is evidence that the property so described constitutes a public endowment, but they establish nothing more. Indeed, the judgments in those cases show that in the particular instance the description of the property as ' devadayam ' was treated as conclusive because there was no other evidence, either documentary or oral, to displace the prima facie application of the word. Moreover, there is the authority of Seshadri Reddi v. S. Subramania Aiyar A.I.R. 1923 Mad. 163, that the word 'devadayam ' is also appropriate to describe a service inam. I think, therefore, that the word 'devadayam' must be taken as being equally applicable to endowments and to service inams connected with religious institutions.

27. It has also been suggested that the description of the original grantee as 'Mulla' in Ex. A indicates that the grant was made to him on behalf of the mosque. 'Mulla,' according to Wilson's Glossary, may mean a learned man or a village school master in charge of a mosque. It may be remarked that in the earliest of the documents produced, Ex. X, the grantee is not given the title of 'Mulla.' However that may be, I do not think any special significance attaches to this word. Whether the grant was made because the original grantee was a learned man or a pious man is simply a matter of conjecture But the description of the grantee as ' Mulla' does no imply that the grant was made to him as representing the mosque. In my opinion on the construction of Exs. X and A, the grant was of an ordinary service inam.

28. Then is there any evidence of user or are there any other circumstances of the case which suggest that this view is erroneous? Previous to 1874 there is no evidence one way or the other on the subject. But from that date begins a series of alienations of the inam lands by Dada Saheb, the then representative of the original grantee. I do not attach much importance to these transactions because they appear to be equally consistent with the position of the alienor being a trustee for the mosque as with the lands being simply the subject of a service tenure. Of greater significance are the incidents which attended the Government's resumption of the inam. Enquiry?was made sometime in 1908 by the Tahsildar whether the services were being performed. In the course of that enquiry a statement was taken from Dada Saheb (Ex. 3-a), in which he stated that he was performing services in the mosque and that he would put a tiled roof on the mosque and fit it with doors and doorframes. The Tahsildar reported on 16th December 1908 (Ex 2) that the services had been discontinued for a long period and that the mosque building was in a. neglected condition; but he recommended that the inamdar be given six months wherein to build a substantial mosque and to revive the services The Board of Revenue, by order dated 30th April 1909,, (Ex C) sanctioned the resumption of the inam. On 12th August 1909 Dada. Saheb petitioned (Ex. 12-a)the Collector of Kistna for a cancellation of the resumption order, and this was followed on 18th August 1910 (Ex. 12) by a notice from Dada Saheb's vakil complaining that

the resumption was most unjustly brought about owing to the inimical attitude of the village karnam

to his client, and threatening legal proceedings if no redress was given. This notice stated that ' in accordance with the resumption ' seri assessment had been collected from Dada Saheb to the extent of Rs. 461-10-1, and paid under protest. On 27th February 1912 four Muhammadan inhabitants of Ulavalpoodi and Nagavaram, one of whom was P.W. 2 in the suit under appeal, petitioned the Board of Revenue (Ex. 1) to cancel the resumption of the grant. The burden of all these statements and petitions was. that the services had been performed by the inamdar, and that the inam had been resumed upon the insufficient and biased report of the Tahsildar. In not one of these documents is there a trace of a claim that the inam lands were the property of the mosque. It is not till the respondents, purporting to represent the Mahomedan community in the neighbourhood, launched their suit in 1919, six years after the Board of Revenue had on 28th March 1913 finally resolved (Ex. G) that the resumption must stand, that we find, as we do in para 4 of the plaint, a definite claim to the inam lands as the property of the mosque. The respondents' claim was palpably an afterthought. There remains the question of limitation. Dada Saheb's cause of action to set aside the resumption arose, at least, when the Government collected seri assessment from him. A suit by him became barred under At. 14, Lim. Act, long before the present respondents brought their suit, and as they could not succeed without setting aside the resumption they can stand in no better position than Dada Saheb. If the resumption could be held to be a nullity on the ground that the act of resumption was ultra vires, there would be the authority of Secy. of State v. Gulam Mahaboob Khan Saheb [1919] 42 Ma. 673, for holding that Article 14 had no' application. I share the doubt of my brother about the correctness of that decision, for it appears to me difficult to regard the act of an officer of Government in his official capacity any the less an act to which Article 14 applies because the Court may subsequently hold the official act to be ultra vires. It is not, however, necessary, to pursue this matter as we hold that in this case the inam was resumable by the Government for non-performance of the service attached to it.

29. It follows that the appeal must be allowed and the plaintiff's suit dismissed.

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