# July, :n . I964 ' -\ C Periaswami v. Slllldaresa Iyer

- **Citation:** [1964] 8 S.C.R. 347
- **Court:** Supreme Court of India
- **Decided:** 1964-07-31
- **Bench:** K. Subba Rao, S. M. Sllll
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/july-n-i964-c-periaswami-v-slllldaresa-iyer-3272
- **Pages:** 21

## Headnote

/Mm rrant--Suit for_ ejectment-Defendant raised plea of LoJt GrantWhen presumption of Lo1t Grant arise.1-Whether trant i.r melvaram.
or both ,,_ .. urm.J--Right of Archaka.t-Whether ArchaktJ.f can cl&im
remuneration. in a 1uit for ejectment.
The :appellants filed suits for the recovery of certain properties from
tl!.e pos!e!sion of the respondents. The plaintiffs were the trwtees of
the temples and the defendants were the archak!s and the alienees of
tho suit properties. The!e suits were based on title and the relief a,,ked
fee was the eviction of the arcbakas from the suit property z.s they. · ·
accordi.n: to the plaintiff:!!, (appellants) bad no title to rerriain in
pcssession. Tho plaintiffs claimed that the suit properties ·were the
iJLOperties of the deity !.nd that the defendants bad no, right therein.
The archal!.S raised the plea that the title of the deity was confined
enly to rr.elvaram in the plaint-!chedule landa and that they had title
to the Kudivaram. Both the Trial Court and the High Court confirmed
the title of the deity to both the intere!ts (VaramJ) and negatived the
title of the defendant-Archakas.
The High Court also held. that the
art:h.akas were entitled to have a portion of the said properties allotted
to lliem toward.J their remuneration for the services to the temples and.
&a.Te a decree directing the division of the said properties into two halYes
and puttin.; the archakas in possession of one half. Against this decree
of the High Court both the arch al: as and the trustees (appellants)
preferred cross appeals to this Court.
Sluzh /.
1964
July, :n .
I964 '
-\
C.. Periaswami
v.
Slllldaresa Iyer
SUPREME COURT REPORTS
The main point for consideration was whether the High' Court. havitiJ
held that the title to the suit property vested in the deity, had ;urisdiction
to compel the trustees of the tenlple to put the arcbakas m posseSjlOA
of specified extent of prop.eny towards t.~cir ren.11.,~c~r~tlon.
lleld: (i) The principle of a Lost Grant l'an rJ;1l}'
~-e invoked whe1cthere is. no accepta'ble evidence of the terms of the grant. In tU
present case there is no scope for invoking the doctrine of Lost Gra..-it
-as the terms of the grant are clear from the recitals in the loam :register
and the inam statement, which conclusively establish that both the.
Varam~ were &ranted to the deity.
Sankaranarayana Pillayan T. 11.R.E. Board,
Madrtu~ I.LR. 1941Mad. 585, Buddu Satyanarayana v. Konduru Venkatapayya, [1953] S.C.R.
1001, !rfaginiram Sitaram v. Kasturbai Manibhai, (1921) LR. 49 I.A. $4
and Mohamed Muzafar Ali Musavi v. labeda Khatun, (1930) LR. '7
I.A. 125. relied on.
(ii) The High Court erred in making an allocation of the Janda
between the trustees and the archakas in a suit Coi- ejectment because
there was absolutely no material either in the pleadings or in the
evidence to make anY SU.ch apportionment. The High Court bad no
option but to deliver possession·. to the plaioliffs who had t;-Stab!ished
their title to the suit properties. Io a- iUit for framing a s;::heme lot
temple a court may in an appropriate case put the arcbaka in Pl..,_o;-e.ssion
of a portion of the temple lands towards his remuneration for :icrvices
of the temple; but such considerations are out of place in a suit for
rjectmenL
-Uk:J
. Brahmayya v. Rajaswaraswami Temple, A.l.R. 1953 ;,I:ld. . .SSO as
. Yenkatadri v. Seshacharlu. LLR. 1948 ~lad. 46. referred to.
, (iii) On the facts of thiJ case it was held that the conducl of tho
archakas, was consistent with the recitals in the inam -register, namely,
that what was granted to the deity was the land i.e. both the Varam1
and that they had been put in enjoyment tbe said land in their capacity
as archakas and de facto trustees.
They could not by mortgaging or
otherwise alienating the property claim any· right in derogation of the
title of the deity. They also cannot claim any right because their namca
are mentioned in addition to deity in the loam register. Their names
in addition to the de

## Text

_Characters 0–39,503 of 44,185. This is a partial read: ask again with offset=39503 for what follows._

8 S.C.R.
SUPREME COURT REPORTS
347
in the ·statute to include in that expression what in reality
1964.
is not 'income, but is deemed income, the liability to
CJ.'l.
assessment would justifiably
be limited to· profits of. tlie Chu:•,J;,,
a1Ul
business which is computable under s. 10.
·
\
Co.
The appeals therefore fail and are dismissed with costs.
One hearing fee.
Appeals di.rmissd.
C. PERIASWAMI GOUNDAN AND ORS.
. --v.
SUNDARESA IYER AND ORS.
(K. SUBBA RAO AND S. M. Sllll, JJ.)
/Mm rrant--Suit for_ ejectment-Defendant raised plea of LoJt GrantWhen presumption of Lo1t Grant arise.1-Whether trant i.r melvaram.
or both ,,_ .. urm.J--Right of Archaka.t-Whether ArchaktJ.f can cl&im
remuneration. in a 1uit for ejectment.
The :appellants filed suits for the recovery of certain properties from
tl!.e pos!e!sion of the respondents. The plaintiffs were the trwtees of
the temples and the defendants were the archak!s and the alienees of
tho suit properties. The!e suits were based on title and the relief a,,ked
fee was the eviction of the arcbakas from the suit property z.s they. · ·
accordi.n: to the plaintiff:!!, (appellants) bad no title to rerriain in
pcssession. Tho plaintiffs claimed that the suit properties ·were the
iJLOperties of the deity !.nd that the defendants bad no, right therein.
The archal!.S raised the plea that the title of the deity was confined
enly to rr.elvaram in the plaint-!chedule landa and that they had title
to the Kudivaram. Both the Trial Court and the High Court confirmed
the title of the deity to both the intere!ts (VaramJ) and negatived the
title of the defendant-Archakas.
The High Court also held. that the
art:h.akas were entitled to have a portion of the said properties allotted
to lliem toward.J their remuneration for the services to the temples and.
&a.Te a decree directing the division of the said properties into two halYes
and puttin.; the archakas in possession of one half. Against this decree
of the High Court both the arch al: as and the trustees (appellants)
preferred cross appeals to this Court.
Sluzh /.
1964
July, :n .
I964 '
-\
C.. Periaswami
v.
Slllldaresa Iyer
SUPREME COURT REPORTS
The main point for consideration was whether the High' Court. havitiJ
held that the title to the suit property vested in the deity, had ;urisdiction
to compel the trustees of the tenlple to put the arcbakas m posseSjlOA
of specified extent of prop.eny towards t.~cir ren.11.,~c~r~tlon.
lleld: (i) The principle of a Lost Grant l'an rJ;1l}'
~-e invoked whe1cthere is. no accepta'ble evidence of the terms of the grant. In tU
present case there is no scope for invoking the doctrine of Lost Gra..-it
-as the terms of the grant are clear from the recitals in the loam :register
and the inam statement, which conclusively establish that both the.
Varam~ were &ranted to the deity.
Sankaranarayana Pillayan T. 11.R.E. Board,
Madrtu~ I.LR. 1941Mad. 585, Buddu Satyanarayana v. Konduru Venkatapayya, [1953] S.C.R.
1001, !rfaginiram Sitaram v. Kasturbai Manibhai, (1921) LR. 49 I.A. $4
and Mohamed Muzafar Ali Musavi v. labeda Khatun, (1930) LR. '7
I.A. 125. relied on.
(ii) The High Court erred in making an allocation of the Janda
between the trustees and the archakas in a suit Coi- ejectment because
there was absolutely no material either in the pleadings or in the
evidence to make anY SU.ch apportionment. The High Court bad no
option but to deliver possession·. to the plaioliffs who had t;-Stab!ished
their title to the suit properties. Io a- iUit for framing a s;::heme lot
temple a court may in an appropriate case put the arcbaka in Pl..,_o;-e.ssion
of a portion of the temple lands towards his remuneration for :icrvices
of the temple; but such considerations are out of place in a suit for
rjectmenL
-Uk:J
. Brahmayya v. Rajaswaraswami Temple, A.l.R. 1953 ;,I:ld. . .SSO as
. Yenkatadri v. Seshacharlu. LLR. 1948 ~lad. 46. referred to.
, (iii) On the facts of thiJ case it was held that the conducl of tho
archakas, was consistent with the recitals in the inam -register, namely,
that what was granted to the deity was the land i.e. both the Varam1
and that they had been put in enjoyment tbe said land in their capacity
as archakas and de facto trustees.
They could not by mortgaging or
otherwise alienating the property claim any· right in derogation of the
title of the deity. They also cannot claim any right because their namca
are mentioned in addition to deity in the loam register. Their names
in addition to the deity are mentioned as they were in possession (}f
the land in their capacity as de facto trustees.·
Arunachalam Chetti v. Venkata Chalapathl Guruswami2al •. {1920)
I.LR., 43 Mad. 253 and Secretary of State for India T. Vldhya Thill«
Swamiga, I.L.R. 1942 Mad. 893, referred· to.
· "larayanamurthi v. Achaya Sastrulu, A.LR. 1925 Mad. -411
rdft
Oil.
Civu. APPELLATE JURISDICTION: Civil Appeal No. 646
-652 of 1960.
I
8 S.C.R
SUPREME COURT REPORTS
349
Appeals from the judgment and decree dated November
!3, 1962 of the Madras High Court in 385, 259, 260, 385
<Ji 194 7 respectively.
A. V. Viswanatha Sastri and R. Gopa/akrishnan,
for
1he appellant (in C.A. Nos. 648, 649 and 650 of 1960) and
for the respondents (in C.A. Nos. 651 and 652 of 1960),
T. V. R. Tatachari, for respondents Nos. 1. 2, 5 and 6
(in C.A. No. 648 of 1960) and appellants (in C.A. No. 652
el 1960).
S. T. Desai, K. Jayaram and R. Ganapathy Iyer, for
respondents No. I, 3, 4, 5, 8 to 11, 15, .16, 18, 19 and 21
(in C.A. No. 649 of 1960) responden~ Nos. 1, 2 and 8
tin C.A. No. 650 of 1960) and the appellants
(in C.A.
No. 651 of 1960).
July 31, 1964.
The Judgment of the Couft1 was
delivered by
'
1'64
-
SUB BA RAo, J .-Thei;e five appeals by certificate arise
Subbo Rao 1.
out of Original Suits Nos. 183, 184 and 185 of 1945 filed
in the Court of the Subordinate Judge; Coimbator, Madras
»late.
O.S. No. 183 of 1945 relates to properties claimed on
hehalf of Sri
Chowleswaraswami temple.
Periaswami
Goundar and Samana Goundar, the plaintiffs in the said
ilUit, are the trustees of the said temple.
They filed
the
ilUit for the recovery of the plaint-scheduled properties from
the defendants who are the archakas and the alienees from
!hem on the ground that the said properties were the
properties of the ieity and that the defendants had no right
d:ierein. They also claimed mesne profits for a period of
J years prior to the suit.
The defendants filed a writtenlitatement admitting the claim of the deity to the melvaram
interest in the properties
but claimed that the archakas
O'll'ned the kudivaram therein and that some of the said
properties were validly transferred to the alienees.
O.S. No. 184 of 1945 was filed in the said Court by
lite trustees of Sri Pongali Amman temple situated in the
vllage of V engambur for the recovery of the properties
1964
C. Periaswami
v.
Sundaresa Iyer
Subba Rao J.
'
350
SUPREME COURT REPORTS
mentioned in the schedule attached to the plaint. ThJ
defendants, who are the archakas and alienees from them,
inter a/ia, pleaded that only melvaram in the said properties
was granted to the deity and that the archakas owned the
kudivaram therein and that they had validly alienated their
interest in the said properties in favour of the alienees.
O.S. No. 185 of 1945 was filed in the same Court by
the trustees of Sri Varadaraja Perumal temple situated in
Vengambur village.
The plaintiffs sought to recover th•
properties mentioned in the schedule annexed to the plaint
from the archakas and the alienees from them on, the same
grounds and the defendants raised similar pleas. It is not
necessary to mention other defences raised in the written
'tatements filed in the three suits as nothing turns upon them
in these appeals.
The main issue in O.S. No. 183 of 1945, 0.S. No. 184
of 1945 and O.S. No. 185 of 1945 was whether the inam
grants made to the three temples consisted of both th8
varams or melvaram alone.
The learned Subordinate Judge tried the said suits along
with two other suits and delivered
a common judgment
therein.
On the said issue he held in all the three suit!
that the grants to the three deities
comprised both the
varams.
He further held that the alienations made by tha
archakas prior to May 16, 1931, were binding on the
trustees of the respective temples and that the alienatiom
made subsequent to that date were liable to be set aside.
In the result the learned Subordinate Judge gave a decreo
in each of the suits for possession of the plaint-schedule
properties except those covered by the alienations effected
before May 16, 1931. He also decreed rnesne profits to
the plaintiffs for a period of 3 years prior to the suits and
also subsequent profits from the date of the suits to the. data
of delivery of possession at the rate fixed by him.
Tho
defendants in the said suits preferred appeals to the High
Court of Madras, being Appeals No_s. 259, 260 and 38'
of 194 7. The said appeals were heard by a Division Benell
of the said High Court, consisting of Satyanarayana Rao
and Rajagopalan, JJ. The High Court agreed with the
BS.C.R.
SUPREME COURT REPORTS
351
.trial court on the finding relating to the nature of the
grants to the temples, that is to say it held that the grants
to the temples
comprised both
the varams, namely,
me/varam and kudivaram. The learned Judges, for the
first t;me, though there was no pleading, no issue and no
contention in the trial Court, held that the archakas were
entitled to have a portion of the said properties allotted to
them towards their remuneration for the services to
the
te10ples and gave a decree directing the division of the said
properties into two halves and putting the archakas
in
possession of one half.
They did not disturb the finding
of the learned Subordinate Judge in regard to the aliena·
tions, that is they maintained the alienations made before
May 16, 1931.
Against the decree of the High Court in A.S. No. 259
of 1947 and A.S. No. 385 of 1947 both the archakas and
the trustees preferred appeals to this Court questioning the
correctness of the decree of the High Court in so far as it
went against them. Against the decree in A.S. No. 260 of
1947 no appeal was filed by the archakas, but the trustees
preferred an appeal questioning that part of the decree
directing a part of the properties to be put in possession of
the archakas.
Mr. Desai
and Mr.
Tatachari,
appearing for the
archakas in the different appeals, contended that the Courts
below, having regard 10- the consistent and continuous conduct of enjoyment as absolute owners of the properties by
the archakas spread over a long period of time,
should
have invoked the doctrine of lost grant particularly when
there was no clear and convincing evidence of the terms of
the grant. Alternatively,
they argued that the Courts
~hould have held, on a fair construction of the recitals found
in the inam statements and the inam register,
that only
melvaram was granted to the deity.
Mr. Viswanatha Sastri, learned counsel for the trustees,
contested this position. He would say that there is no scope
for invoking the doctrine of lost grant as the recitals in the
inam register and the inam statement, which are of great
evidentiary value,
conclusively establish that both the
c. p.,;41W111n1
'I'.
Sundaresa Iyer
Subba Rao 1.
IH4
C. P•ri48w•11<i
"·
S"""1111tJ Iyer
Subb• lta• !.
\
352
SUPREME COURT REPORTS
[r¢4j
varams were granted to the deity and that all the documents, or most of them, disclosing the conduct of the
archakas would support the
conclusion that both the
varams were so granted to the deity.
At the outset it would be convenient to notice briefly
the scope of the doctrine of lost grant,
as the learned
counsel for the appellants have strongly relied upon it.
The doctrine of lost grant with its limitations has been
succinctly explained by the Jlldicial Committee in Sankaranarayana Pillayan
v.
H.R.E. Board,
Madras(').
The
temple in that case had 4 kattalais. Though the temple
had a general trustee, each of the kattalais was in the
charge of a special trustee or trustees. In regard to one of
the kattalais after meeting all the expenses there remained
a surplus which the trustees claimed for their own benefit
and in fact they were utilizing the surplus for the benefit of
their families.
It was contended by
the appellants that
they were the owners of the suit properties, which were
subject only to a charge in favour of the katta/ai for the
performance of the worship according to the prescribed
scale. The Judicial Committee, after noticing the earlier
decisions, observed:-
"The presumption, it was stated,
of an origin in
some lawful title which the Courts have so
often readily made in order to support possessory rights long and quietly enjoyed, arises
where no actual proof of title is forthcoming,
and the rule has to be resorted to because of
the failure of actual. evidence. In the present
case, where there is ample and convincing
proof of the nature of the grant, the object of
the endowment and the capacity of the persona
Claiming the user and enjoyment, the rule can
hardly have any application." ·
It!. the result the Judicial Committee held that the properties were granted only t'o the deity and that the trustees had
no claim to any surplus income. The said principle hu
been accepted by this Court in Buddu Satyanarayana · Y.
Konduru Venkatapayya(').
There a question similar to
(1) I.L.R. 1948 Mad. 585, 6o5~.
(2) [1953) S.C.R. 1001, 1003.
•
I
~.
I
.8 S.C.R.
SUPREME COURT REPORTS
353
that now raised was considered. The archakas claimed,
relying upon the doctrine of lost grant, that under the
original inam grant only the melvaram interest was given
to the deity. Rejecting that contention, Das, J., speaking
for the Court, observed:
"There is no doubt, on the authorities, that a presumption of an origin in some lawful title may
in certain circumstances be made to support
possessory rights
long and
quietly
enjoyed
where no actual proof of title is forthcoming
but it is
equally well
established that that
presumption cannot lie made where there is
sufficient evidence and
convincing proof of
the nature of the grant
and the persons
to
whom it was made."
The basis of this doctrine is clearly brought out by two
judgments of the Judicial Committee.
Lord Buck-master,
delivering the judgment in Maginiram Sitaram v. Kasturbhai
Manibhai('), observed:
''At the lapse of 100 years, when every party to the
original transaction has passed away, and it
becomes completely
impossible
to ascertain
what were the circumstances which caused the
original grant to be made, it is only following
the policy which the Courts al~ays adopt, of
securing as far as possible quiet possession to
people who are in apparent lawful holding of
an estate, to assume that the grant was lawfully and not unlawfully made."
Viscount Sumner in
Mohamed Muzafar Ali Musavi v.
Jabeda Khatun (2) said much to the same effect thus :
"The presumption of an origin in some lawful title,
which the Courts have so often readily made
in order to support possessory rights, long and
quietly enjoyed, where
no
actual proof of
title is forthcoming, is one which is not a mere
(I) [19zr] L·R .. ;9 I.A. 54,
Jll Sup. Court.-23
(2) [1930] L.R. 57 I.A. 125.
196'1
C. Periaswami
v.
•
Sundaresal Iyer
Sub/Jo Rao I.
1964
C. ,Perkuwami
"·
Slllldmem Iyer
Subbll Rao J.
354
SUPREME COURT REPORTS
[rg64J
branch of the Jaw of evidence. It is resorted
to because of the failure of actual evidence."
It is, therefore, clear that the said principle can only be
invoked where there is no acceptable evidence of the terms.
of the grant.
In these appeals
the
trustees filed
copies of
the
relevant extracts
of the
inarn
register and
the
statements
filed
by the
ancestors
of
the
archakas during the inam enquiry in support of the
contention that both the varams were granted to the deity.
The evidentiary value of the recitals in the inam register has
been emphasized by the Judicial Committee in more than
one decision.
In Arunachalam Chetti v. Venkata Chalapathi Guruswamigal('), the Judicial Committee expressed
its view on the evidentiary value of the recitals in inam
register thus:
"It is true that the making of this register was for the
ultimate purpose of determining whether or not
the lands were tax free.
But. it must not be
forgotten that the preparation of this register
was a great act of state and its preparation and
contents were the subject of much consideration
under elaborately detailed reports and minutes.
It is to be remembered that the Inam Commissioners, through their officials, made enquiry on
the spot, heard evidence and examined documents, and, with regard to each individual property, the Government was put in possession not
only of the conclusion come to as to whether the
land was tax free, but of a statement of the
history and tenure of the property itself. While
their Lordships do not doubt that such a report
would not displace actual and authentic evidence in individual cases, yet the Board when
such is not available, cannot fail to attach the
utmost importance, as part of the history of
the property, to the information set forth in
the inarn register."
(1) (1920] I.L.R. 43 Mad. 253.
' I
8 S.C.R.
SUPREME COURT REPORTS
355
In the latest decision of the Judicial Committee reported in
Sankaranayurza Pillayan's case('), it reiterated the
same
position when it said:
"The question arose in a recent case before this
Board with reference to a Madras inam [see
Secretary of State for India v. Vidhya Thirta
Swamigal( 2 }], where it was held that the title
deeds and the entries in the inam register are
evidence of the true intent and effect of the
transaction and of the ch2.racter of the. right
which was being recognized
and continued.
The entries in the inam register and the description of the inamdar therein were accepted
as indications of the nature and quantum of
the right and the interest created in the land."
This view of the Judicial Committee has been accepted and
applied by the Madras High Court in many decisions when
it was called upon to decide on the conflicting claims of a
trustee and a archaka to the properties de1 lt with in ~he
inam registers.
The documents relating to Sri Pongali Amman temple
are Exs. P-2 and P-3. Ex. P-2 is the statement filed by an
ancestor of the present archakas before the Inam Commissioner. It is of the year 1862. Ex. P-3 is an extract of
the inam register. As observed by the Judicial Committee,
the entries made in the said register are the result of an
elaborate enquiry based upon oral evidence, on the spot
enquiry and scrutiny of available accounts and
records.
The inam statement is only one of the pieces of evidence
which the Inam Commissioner might have taken into consideration in compiling the inam register. The recit~.ls in the
statement must, therefore, give place to the recitals in the
inam register, though
an attempt shall be
made to
harmonize them, if possible. Before considering the recitals
in Ex. P-3 it fa necessary to bear in mind the common case
i.e., that it is the case of both the archakas and the trustees
that Ex. P-3 deals only with the property that was given
to the deity. But the dispute is as regards the extent of the
(I) I.L.R. [1948] Mad. 585.
(2) I.L.R[r942] Mad. 893, 908 (P.C.).
(
11964
C. Peria.swan
••
Sundaresa lyt
Subba Rao'
1964 I
C. Perkuwami
"·
Sundare• 11er
Subba Rao I.
356
SUPREME COURT REPORTS
[rg64]
interest in t.he property that was given to the deity.
wa~
it only the melvaram in the said property that was granted
to the deity or was it that both the varams therein were
granted to the deity. Now let us. give a close look to the
recitals under the variou~ columns in Ex. P-3.
The first
major head is "class, extent and value of inam". The said
major head is divided into 7 sub-heads. Jn col. 2 under the
sub-head "General class to which the inam belongs",
the
entry is "religious". In col. 3 under the head "the survey
number and the name of the field or fields comprised in the
grant-dry, wet or garden", the particulars of the lands are
gjven.
This entry shows that except a small extent which
is a garden the rest is dry land. These details are more
consistent with the grant being· of both the varams than
being of mere melvaram. If it is of melvaram alone, the
quality of the field is quite irrelevant. Sub-heads 4, 5 and
6 show that the extent is about 18 acres and 99 cents and
the assessment is Rs. 24-14-5. These recitals leave the
impression that the land was a dry land bearing a small
assessment of Rs. 24-14-5 and the income therefrom could
not have been appreciable in those days. The second main
head is "description, tenure and documents in support of
the inam". The entries under the various columns under this
head establish that the dry lands bearing an assessment of
R~. 24-14-5 described in cols. 3. 4, 5 and 6 were granted
as Devadayam to the deity Pongali Amman penrnm~ntly bv
Maduraiyar Paligar of Madura. The date of the grant is
not known; but even in the accounts of 1209 F. the name
of the deity was c~tere:l as the grantee.
The third major
head is "name and relationship of the original grantee and
of sub,equent and present heirs-length of possession". Jo
Cols. 13 and 15 the name of the deity alone is given. In
Col. 16 under the heading "name and age" and in Col. 17 ·
under the heading "place of residence" only the name of
the deity is given. Below the name of the deity the name of
the pujari "Pujari Muttandi. age 45" is given. In Cols. 18
and 19 under the heading "relation to orginal grantee or
subsequent registered holders" and "surviving heirs of the
present incumbent"
no entry
is
made.
Obviously
no
entries are made under these sub-heads, as the deity cannot
have relations.
The mention of Pujari Muttandi in
the
8 S.C.R.
SUPREME COURT REPORTS
357
context of other entries indicates that he was in charge of
the temple. If his name was mentioned because he
had
some interest in the land,
the other suitable entries in
regard to his relations ould have been made under the
relevant sub-heads.
Indeed it is not the
case of the
archakas that they have some interest in the me/varam. If
the document was concerned only with
the me/varam
interest, strictly there was no place for the archaka in the
document, for he had no interest therein. His name
was mentioned only as he was the person who was in de
facto management of the properties of the deity. In Col.
21 under the heading "Deputy Collector's
opinion . and
recommendation'', the entry is "To be confirmed permanently to the Pagoda so long as it is well kept up, subject
to the existing jodi of Rs. 3-1-7". Under Col. 22 the inam
is confirmed to the pagoda. A reasonable interpretation of
the recitals in this document leads to the only conclusion
that the Inam Commissioner was dealing with the entire
interest in the land, the particulars whereof were given
therein. There is no evidence that at the time the grant
was made the archakas or any others were kudivaramdars.
But it is said that Ex. P-2, the inam statement, filed by the
then archabs would establish that what was granted was
only the melvaram.
There,
in
Col. 2 under th:! head
"Name of the inamdar entered in dowle and names of the
present enjoyer" the following entry is found:
"Pongaliamman poosari Kuppaiyandi Mu!huveeran
as per paimash entry. For fields Nos. 595 and
597 no poosari's name is mentioned. Present
(enjoyer) Pongaliamman poosari Muthandi."
It is said that pujari is shown as the enjoyer and, therefore,
the deity has no interest in the enjoyment of the land. The
deity was obviously represented by the pujari who was the
de facto trustee.
He was in possession of the property in
his capacity as the de facto trustee. In those circumstances
if the pujari of the temple is described as an enjoyer, it
can only mean that he was in possession of the land on
---,1
behalf of the temple. Whatever ambiguity there m1gnt be
in the said recital it is dispelled by the entry in Col. 12
under t11e head "Particulars of present enjoyment'', namely
1964
C. Peria.swa;
Y.
Sundaresa ly
Subba Rao
1964
~. Peria.swami
v.
~undareaa Tyer
Subba Rao J.
358
SUPREME COURT REPORTS
"By directly cultivating this land selling the produce derived
therefrom and applying the sale proceed to the service of
the deity.
I and my agnates have been performing pooja
and enjoying the said land according to the conditions of
the grant". This entry is couched in clear and unambiguous
terms.
It describes the nature
of the enjoyment of the
land by the archaka; it clearly says that he was cultivating
the land, selling the produce and from the sale proceeds he
was doing the services to the deity in accordance with the
terms of the grant. If the deity was entitled only to the
melvaram, this recital is inconsistent with it.
The recital
indicates that the entire land was the subject-matter of the
grant in favour of the deity and that the produce from t!:Iat
land was utilized for the services
to the
deity.
Strong
reliance is placed upon the entry in col. 13 under the head
"Income derived from the manibam; whether sarvadambla
or jodigai, if jodigai, how much". The entry is, "Income
Rs. 24-14-5; Jodigai Rs. 3-1-7." Basing upon the said
entries the argument is that Ex. P-3 shows that the assessment on the land was Rs. 24-14-5 and Ex. P-2 indicates
that the same amount was the income derived from
the
inam and, therefore, what was granted in inam could have
been only the assessment i.e., Rs. 24-14-5. This ar'.!nment
is farfetched and based on a slender foundation.
One of
the main objects of the inam enquiry was
to ascertain
whether the alienated lands were free of tax or not.
The
archaka who was in possession of the land on behalf of the
deity had to give information as regards the tax payable
in respect of the land in his possession.
In that context
the expression "income derived from the manibam" can
only mean the assessment fixed on the land. After stating
that full assessment was only Rs. 24-14-5 the archaka stated
that he was not paying the entire amount, but was paying
only the jodigai of Rs. 3-1-7.
So
understood the said
recitals fit into the scheme of other recitils in the said
statement and those found in Ex. P-3. A similar argument
was advanced before this Court in Buddu Satyanarayana's
case(') and was rejected.
Das, J ., observed at p. 1006
thus:
(1) [1953) S.C.R. 1001
8 S.C.R.
SUPREME COURT REPORTS
359
"A part from these points of distinction the decision
relied on by the learned Attorney-General
appears to us to be of doubtful aut!iority. As
will appear from the passages quoted above,
the decision rested mainly, if not entirely, on
the fact that _the amount of assessment and the
amount of income were the same and the conclusion was drawn that the Inam grant comprised only of the revenue assessment, i.e., of
melvaram rights.
We are unable to follow the
reasoning."
We, therefore, hold that, from the recitals in the said
two documents, what was granted to the deity was of both
the varams.
Learned counsel for the archakas relied upon the long
possession and enjoyment of the. suit lands by the archakas
t
and their ancestors in support of their contention that the
melvaram alone could have been granted to
the deity.
Long enjoyment is also consistent with an arrangement that
might have been entered into between the grantor and the
then functioning archaka or archakas having regard to the
conditions prevailing then.
The lands granted were comparatively of small extent and they were dry lands. In those
days the income from the said lands must have been very
insignificant.
There was no trustee for the temple.
In
those circumstances it is more likely that the grantor would
have put the land in the possession of the archaka.so that
he might, from and out of the produce from the land, maintain the temple, perform the puja and meet the expenditure
connected with the puja and also pay himself the remunera-
'
lion for his services to the temple. That was a convenient
arrangement which was adopted in many of
the small
temples in that part of the country. This practice was
recorded with clarity by the
Madras High
Court in
Narayanamurthi v. Achaya Sastrulu('). In dealing with a
~imilar argument the learned Judge observed:
"The evidence of user and enjoyment, however Jong
'
uninterrupted
and unquestioned,
would
be
evidence of the grant only ht the absence of
(1) A.T.R 1925 Mad. 4tr, 412-4r3
19M
C. Peria.sw•
...
Sundaresa I:
Subba Rao
1964
. Ptriaswami
••
.undaresa Iyer
'ubba Rao J.
SUPREME COURT REPORTS
any reliable or cogent evidence with regard to
the terms of the grant itself or in the case of
any ambiguity in the grant. It seems to be
clear that almost very recently the suit lands
yielded only just what was sufficient for nitya
naivedyam or the daily worship. No doubt in
such a state of things not only the persons who
established the temples and made the endowments but succeeding generations of worshippers would have allowed the archakas to cultivate the lands and take the income performing
the puja as it was obviously the most convenient
mode of arranging for
the worship
of the
deities and the payment of remuneration
of
the archaka service."
"But when the income accruing from the lands came
to be considerable
and · the
atchakas,
by
reason of old habits and follo" i:1g their forefathers, claimed the lands and surplus profits
therefrom to b~ their own, it was only natural
that the worshippers should
take steps
to
secure the surplus income for the institutions."
These observations are very
apposite and
they
clearly
describe the ci~cumstances under which the archakas of the
temples were allowed to be
in possession of the temple
lands. If that was the situation under which the archakas
came into possession of the lands, they were certainly in the
position -o1 de facto trustees and they could not by mortgaging or otherwise alienating the properties claim any
rights in derogation of the title of the deity.
Indeed the
documents on which the learned counsel
relied
contain
clear and unambiguous
admission on the part of the
archakas
that the
land itself
was the
property of
the deity.
Exs.
P-12, P-13, P-14 and P-15
are copiek
of mortgages execut.ed by the archakas. Under these documents the land in t~eir possession was mortgaged and it was
described as padi(haram Manyam.
They also disclosed
that the paditharam paddy directed to ,,be paid to the temple
was more than the kist payable thereon to .the Government.
In the prior proceedings i.e., applications preferred by tl1e
I
'
8 S.C.R.
SUPREME COURT REPORTS
archakas for declaring the temples as excepted ones, there
was no claim that the melvaram alone was granted to the
deity. In other proceedings the archakas claimed that the
lands were service inams, but they did not come forward
with the present plea that melvaram only was granted to
the .deity. Further, pattas for the suit lands were transforred without any objeqtion of the archakas in the name of
the deifies in 1939 anl:i the archakas also paid contribution
to the Madras Hindu Religious Endowments Board on the
basis that both the varams belonged to
the deity.
The
conduct of the archakas, therefore, is consistent with the
recitals in the inam register, namely, that what was granted
to the deity was the land i.e., both the varams,
and that
they had been put in possession and enjoyment of the said
land in their capacity as archakas and de facto trustees.
1964'
C.Pul"6Wo
...
Sunda,.., l:
Learned counsel for the appellants relied upon an order
made by A.RC. Westlake, Collector of Coimbatore, on
April 14, 1941, wherein he held that only melvaram was
granted to the deity. That order came to be made under
the following circumstances.
The trustees
appointed by
the Coimbatore District Temple Committee filed an application before the Revenue Division Officer under s. 44-B11 (a) of the
Madras
Hindu Religious
Endowments
(Amendment) Act, 1934, for a declaration that the alienations of portions of inam land attached to the temple were
null and void and for resumption and regrant of the same
Subba RJJo
to the deity. One of the issues in the application was whether the inam comprised melvaram or both melvaram and
Kudivaram. The Revenue Division Officer held that the
inam comprised both the varams. On appeal, the Collector _
came to the contrary conclusion. But a perusal of the order
lhows that his conclusion was based upon pure surmises.
The Collector did not refer to any document or evidence
for his conclusion. The trustees filed a suit in the Court
of the Subordinate Judge, Coimbatore, for a declaration
that the inam grant in favour of the plaint , temple comprised both the varams.
The learned Subordinate Judge
-1
held that s. 44-B of the Act had no application as the grant
was to the deity and was not a service inam. The result'
of this litigation was that there was no final decision on the·
1964
Perialwami
••
rndarem ly~r
•bba Rao J.
SUPREME COURT REPORTS
[rg64]
question whether the grant was of both the varams or only
of the melvaram. These proceedings cannot, therefore, be
of any evidentiary value in this case.
On a consideration
of the entire evidence we agree with the conclusion arrived
at by the High Court that the grant to the deity comprised
both the varams in the suit lands.
Now coming to the appeals relating to . Chowleswara·
swami temple, the factual and legal position is exactly the
same as in the case of Pongaliamman temple.
Ex. P-2 is
the statement made before the Inam Commissioner by the
then archaka and Ex. P-3 is the extract from the Inam
register.
Under the relevant entries in the inam register,
survey numbers, extent, quality and the assessment of the
subject-matter of the grant are given. The land is described as Devadayam and is stated to have been granted for the
support of the pagoda of Chowleswaraswami. The nature
of the grant is described as permanent.
The date of the
grant is not known.
The grantor's name is given
as
Maduraiy'ar Paligar of Madura. The name of the original
grantee is given as Chowleswaraswami.
The grant of the
land described earlier is confirmed
permanently
to the
pagoda as long as it is well kept subject to the existing jodi
of Rs. 24-8-2. The only mention of archaka is in col. 17 under
the head "Particulars
regarding present owner" and
the
entry thereunder is
"Chowleswaraswami,
stanika
Muttaiyan".
The other columns where the relationship of the
presel'lt owner with the previous owners is expected to be
recorded are left blank for the obvious reason that the said
columns are irrelevant in the case of a deity. The archaka's
name in addition to the deity is mentioned as he was in
possession of the land in his capacity as de facto trustee.
The deity must necessarily have to be represented by somebody and that he can only be the stanika who was managing
the temple and its properties.
The relevant entries in the
inam register do not countenance any contention that the
melvaram interest only in the land was granted and that
was confirmed to the deity. If the melvaram was granted
or confirmed, the recitals would have been different. The
corresponding inam statement is Ex. P-2. The entries are
practically similar to those found in Ex. P-2 relating
to
I
\
l3 S.C.R
SUPREME COURT REPORTS
Pongaliarnman temple with some slight variations.
Col. 2
makes a dear distinction between ownership
of the land
and enjoyment. The owner is shown as Chowleswaraswami
and the "present" enjoyer is shown as Chowleswaraswami'8
stanika. The nature of the enjoyment is described in col. 2
thus:
"The said lands are leased out for varam cultivation
and I cultivate the same myself some times and
the income (masul) therefrom is enjoyed by
me and co-sharers (Pangali)
and used for
Swami Viniyogam."
It is manifost from this recital that the land was the subjectmatter of the grant and the income therefrom was derived
either by direct cultivation or by leasing out the same, and
the said income was enjoyed by the archaka and used for
viniyogam. The point to be noted is that the predecessorin-interest to the present archaka admitted that the produce
from the land was utilized for the services of the deity.
The said admission is inconsistent with the allegation that
the grant was only of me/varam. The entries in col. 13 arc
sin1ilar to those contained in the corresponding Ex. P-2
relating to Pongaliamman temple, and, for reasons already
given, they do not support the contention that the assessment of Rs. 74-1-5 was only granted to the deity.
A combined reading of these two documents leads to
the only conclusion that both the varams were granted to
the deity.
Just as in the case of Pongaliamman temple so
in the case of Chowleswaraswami temple,
the subsequent
conduct of the archakas belie their assertion that only
melvaram int<:'rest in the land was granted to the
deity.
Exs. D-1 of 1867, D-2 of 1868, D-3 of 1870 and D-4 of
1883 are some of tlie mortgages executed by the archakas
of Chowleswara$wami temple. Exs. D-5, D-6 and D-7 are
sales. In all these documents the property is described as
Chowleswaraswami manyam.
If really
the
fodil'aram
belonged to the archakas, they would not have described
the land
they were
alienating
as
Chowleswaraswami
manyam.
The description of the property as that of the
deity is consistent with the title of kudivaram also heing in
the deity.
Further, as in the other case, the pattas .Zere
1164
C. l'eriaswa111i
Y.
Sundaresa 1)'11
Subba Rao J.
1961
i. Ptriuwami
v.
7undaresa Iyer
Subba Rao J.
SUPREME COURT REPORTS
transferred in the name of the deity in 1939, the contributions were paid to the Hindu Religious
Endowments
Board on the basis that the entire interest in the lands
belonged to the deity and that in other proceedings the
archakas's case was not that the grant to the deity was only
of the melvaram but the lands were service inam lands.
Though the archakas dealt with the properties by mortgaging or otherwise alienating them they never
denied
the
title of the deity.
For the foregoing reasons we hold that
even in the case of Chowleswaraswami temple the original
grant made to the deity comprised both the varams.
In regard to Sri Varadaraja Perumal temple, no appeal
was filed hy the archakas and they allowed the judgment of
the High Court in regard to the title to become final.
Nothing, therefore, need be said on the question of title of
the land in respect of this temple.
Coming to the cross-appeals
filed
by
the trustees
against L'iat part of the decree of the High Court apportioning the property of the deity between the deity and the
archakas, the question raised is whether the High Court,
having held that the title to the suit property vested in the
deity, had jurisdiction to compel the trustees of the temples
to put the archakas in possession of specijied extent of
property towards their remuneration.
The
High
Court
observed thus:
"On these findings, it is no doubt true that the
decree in favour of the plaintiffs for possession
of the properties on behalf of the deity has to
be upheld subject to the consideration set forth
below."
Then it proceeded to consider whether any allocation of
land should be made between the archakas and the trustees.
After noticing the relevant decisions on the subject,
it
observed thus:
"These decisions are practically uniform except for
the decisions .......... (in) A.S. No. 237 of
1950(') and ............ (in) Venkatadri v.
~eshacharlu (2 ) and have upheld the allocation
----\-
(I) Brahmyya v. Rojesu<>rcswami temple A.I.R. 19;; Mad. 580.
(2) I.L.R. r948 Mad.