# TIIE ROMAN CATHOLIC MISSION v. STATE OF MADRAS AND ANOTHER

- **Citation:** [1966] 3 S.C.R. 283
- **Court:** Supreme Court of India
- **Decided:** 1966-01-14
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, V. Ramaswami, P. Satyanarayana Raju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tiie-roman-catholic-mission-v-state-of-madras-and-another-3704
- **Pages:** 17

## Headnote

Madras Hindu Religious Endawments Act (2 of 1927), s. 44-B-Vall.
dlty.
'
Melwara1n-Resumption by Gcrvermnent-Period of limitation.
lnam fair retister-V alue of
The suit lands were granted as inam for the perfonnance of puja in ·a
Devasthanam.
As they had been alienated, Revenue DiYisional
Officer, acting under s. 44B of the Madras Hindu Religious Endowment>
Act, 1926, resumed and regraoted them to the Devasthanam, holdinr
that the inam consisted of both me/waram and kudiwaram. The appellantMission, \Vhich was in possession of the lands as alienee, filed su:ts for
" declaration that the inam coosisted only of the Me/waram, that the
grant was a personal inam not liable to resumption under s. 44B and
tllat the section itself was ultTa vires the Provincial Legislature. The trial
Court held that the inam consisted of both warams, but that it was a
pers<)nal inam outside the purview of s. 42B~ and therefore decided in
favour of the Mission.
On appeal, the High Court reversed bolh the
findings and held that the section was intra vires.
In appeals to this Court by the Mission and the Dernsthanam,
, HELD : (i) A concatenation of the several po,vers of the Provincial
Legislature undeu the Government of India Act, 1915, furnished adequate
scope for comprehensive leg· slation on the subject of in ams connectCli "1ith
religious and charitable endowments.
Even if there was any doubt, the
Governor-General in Council must ha\'e decided the question as per r. 4
of the Devolution Rules under the Government of India Act, 1915, and
put an end to any controversy on the matter. The section and the amendment to it in 1946 would be sustained by s. 292 of the Government of
lt:ldia Act, 1935, and tbP. power of the Provincial Legislature thereunder.
Section 44B was thus fully within the competence of the Provincial Legislature and the same would be tme of the corresponding section, s. 35
of the Madras Hindu Religious and Charitable Endowments Act, 1951,
vis-a-vis the Constitution.
[297 C-B, HJ
(ii) The lnam Fair Register incorporated an official declaration which
was the result of detailed inquiries.
All evidence collected in respect
of each inam was carefully sifted and considered before any conclusion
was reached or declared. In the absence of positive and proper evidence
t.o the contrary, such declaration must possess supreme importance. The
High Court reached, on the admissible evidence, the right conclusion
that the melwaram alone was the subject of the inain and that the inmn
was always considered as remuneration for archaka service of the Devasthanam. The finding of the trial Court that it was. a personal irurm "".••
erroneous.
[290 B; 294 D-E; 295 E, F]
284
SUPREME COL'JtT
REPORTS
[1966) 3 S.C.R.
1Uunacha1am Cherty and othtr \'. Venlwlaclra/apatlrl, LR. 56 I.A.
A
204, applied.
(in) 32 & 33 Viet. c. 29 only validated the title deeds granted by the
lnam Commission.
It did not create any contract, and thcrefo1e
like
any other grant which is resumable on breach of its conditions, this inarn
... -.
was resumable according to its terms and conditions.
On aJienation, it
was liable to re;umption under s. 448; and ns the resumption by the
Governmeot was of the rne/waram only, and since there is no period of
B
limitation prescribed by any law, no question of adverse possession by the
MiMion would arise. (298 E, F)
Boddapa//i Jagannadltam v. Secretary of State, l.L.R. 27 Mad. 16 and
Subranwn/am Chettiar v. Secretary of St111e, 28 M.L.J. 392, applied.
(iv) By the resumption and rcgrant what was done was only to restore
to the Devasthanam what it had lost.
Therefore, it was not a case of
putting a deoonminational religio1l• inslitutionn at an advantage.
[297
C
F-0)
CIVIL APPELLATE JUR!SD!C'f!0:-1 : Civil Appeals Nos. 389 of
1964 and 69 of 1965.
Appeals from the judgment and orders, dated December 14,
1959 of the Madras High Court in A. S. Nos. 773 and 787 nnd
Appeal No. 734 of 1954 respectively.
S. G. Ramchandra Iyer, J. B. Dadachanji, 0. C. Mathur and
Ravi

## Text

_Characters 0–39,327 of 43,417. This is a partial read: ask again with offset=39327 for what follows._

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TIIE ROMAN CATHOLIC MISSION
v.
STATE OF MADRAS AND ANOTHER
; ;
January 14, 1966
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, V. RAMASWAMI AND
P. SATYANARAYANA RAJU, JJ.]
Madras Hindu Religious Endawments Act (2 of 1927), s. 44-B-Vall.
dlty.
'
Melwara1n-Resumption by Gcrvermnent-Period of limitation.
lnam fair retister-V alue of
The suit lands were granted as inam for the perfonnance of puja in ·a
Devasthanam.
As they had been alienated, Revenue DiYisional
Officer, acting under s. 44B of the Madras Hindu Religious Endowment>
Act, 1926, resumed and regraoted them to the Devasthanam, holdinr
that the inam consisted of both me/waram and kudiwaram. The appellantMission, \Vhich was in possession of the lands as alienee, filed su:ts for
" declaration that the inam coosisted only of the Me/waram, that the
grant was a personal inam not liable to resumption under s. 44B and
tllat the section itself was ultTa vires the Provincial Legislature. The trial
Court held that the inam consisted of both warams, but that it was a
pers<)nal inam outside the purview of s. 42B~ and therefore decided in
favour of the Mission.
On appeal, the High Court reversed bolh the
findings and held that the section was intra vires.
In appeals to this Court by the Mission and the Dernsthanam,
, HELD : (i) A concatenation of the several po,vers of the Provincial
Legislature undeu the Government of India Act, 1915, furnished adequate
scope for comprehensive leg· slation on the subject of in ams connectCli "1ith
religious and charitable endowments.
Even if there was any doubt, the
Governor-General in Council must ha\'e decided the question as per r. 4
of the Devolution Rules under the Government of India Act, 1915, and
put an end to any controversy on the matter. The section and the amendment to it in 1946 would be sustained by s. 292 of the Government of
lt:ldia Act, 1935, and tbP. power of the Provincial Legislature thereunder.
Section 44B was thus fully within the competence of the Provincial Legislature and the same would be tme of the corresponding section, s. 35
of the Madras Hindu Religious and Charitable Endowments Act, 1951,
vis-a-vis the Constitution.
[297 C-B, HJ
(ii) The lnam Fair Register incorporated an official declaration which
was the result of detailed inquiries.
All evidence collected in respect
of each inam was carefully sifted and considered before any conclusion
was reached or declared. In the absence of positive and proper evidence
t.o the contrary, such declaration must possess supreme importance. The
High Court reached, on the admissible evidence, the right conclusion
that the melwaram alone was the subject of the inain and that the inmn
was always considered as remuneration for archaka service of the Devasthanam. The finding of the trial Court that it was. a personal irurm "".••
erroneous.
[290 B; 294 D-E; 295 E, F]
284
SUPREME COL'JtT
REPORTS
[1966) 3 S.C.R.
1Uunacha1am Cherty and othtr \'. Venlwlaclra/apatlrl, LR. 56 I.A.
A
204, applied.
(in) 32 & 33 Viet. c. 29 only validated the title deeds granted by the
lnam Commission.
It did not create any contract, and thcrefo1e
like
any other grant which is resumable on breach of its conditions, this inarn
... -.
was resumable according to its terms and conditions.
On aJienation, it
was liable to re;umption under s. 448; and ns the resumption by the
Governmeot was of the rne/waram only, and since there is no period of
B
limitation prescribed by any law, no question of adverse possession by the
MiMion would arise. (298 E, F)
Boddapa//i Jagannadltam v. Secretary of State, l.L.R. 27 Mad. 16 and
Subranwn/am Chettiar v. Secretary of St111e, 28 M.L.J. 392, applied.
(iv) By the resumption and rcgrant what was done was only to restore
to the Devasthanam what it had lost.
Therefore, it was not a case of
putting a deoonminational religio1l• inslitutionn at an advantage.
[297
C
F-0)
CIVIL APPELLATE JUR!SD!C'f!0:-1 : Civil Appeals Nos. 389 of
1964 and 69 of 1965.
Appeals from the judgment and orders, dated December 14,
1959 of the Madras High Court in A. S. Nos. 773 and 787 nnd
Appeal No. 734 of 1954 respectively.
S. G. Ramchandra Iyer, J. B. Dadachanji, 0. C. Mathur and
Ravinder Narain, for the appellant (in C. A. No. 389/64) and
Respondent No. l (in C. A. No. 69/65).
Ran1:mradham Cherry and A. V. Rangam, for the respondent
No. l (in C. A. No. 389/64).
A. V. Viswanatha Sartri, and R. Gopalakrislman, for the respondent No. 2 (in C. A. No. 389/64) and appellant (in C. A.
No. 69/65).
The Judgment of the Court was delivered by
Hidayatullah, J.
In village Vandiyur of Madurai Taluk there
are two blocks which bear the names Melapappathu and Keelapappathu.
The former is 28.90 acres and bears survey No. 45 (the
old survey No. was 33 and the area 28. 75 acres).
The extent
of the area in kanieas is 21-9. The other block is Survey No. 78,
area 20.88 acres (the old Survey No. was JOO and the area 20.53
acres).
The extent of the area in kanies is 17-10.
These lands
were originally situated in village Managiri and the lands were
manyam lands, that is to say, lands held at a low assessment or
altogether free in consideration of services.
It is now clear from
the record and indeed it is admitted on all hands that they were
the subject of an i11am granted in ancient times by the Rulers and
that they were held for the performance of puja in Sri Meenakshi
S1mdare"''arnl Devasthanam, Madurai.
In 1948 the Revenue
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R. c. MISSION v. MADRAS (Hidayatullah, .'.)
285
A Divisional Officer, Madurai,' held, after enquiry, that the
inam
consisted of both melwaram and kudiwaram and as ·the inmrr
lands had been alienated the inam was liable to be resumed. His
order was passed on April 9, 1948 and purported to be under s. 44B
of the Madras Hindu Religious Endowments Act, 1926 (Madras
B
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F
G
Act 2 of 1927). The inam lands were resumed and regranted
to the Devasthanam.
At that time the lands were in the possession of the Roman Catholic Mission of St. Mary's Church,
Madurai, and were so held by the Mission since October, 1894.
Against the order of the Revenue Divisional Officer the Mission
appealed to the District Collector under s. 44B( 4) of the Act.
The appeal was dismissed on March 13, 1949.
The District
Collector also held that the inam comprised both the Warams.
The Roman Catholic Mission thereupon instituted a suit in the
court of the Subordinate Judge, Madurai unde~ s. 44B(2) (d) of
the Act for a declaration that the inam consisted only of the
me/waram.
The suit was later withdrawn by the District Judge
to his own file and it was registered as 0. S. I of 1954. The
Mission also instituted another suit in the Court of the Subordinate
Judge Madurai, which was also withdrawn by the District Judge·
to his file and was registered as 0. S: 2 of 1954.
The second suit
was a mere general one.
It also sought the declaration which was
the subject of O.S. 1 of 1954 and it questioned both the right
to resume the ]ands as well as the resumption which was ordered·
by the revenue courts.
In that suit the Mission contended •hat
the particular inam was outside the scope of s. 44B of the Madras
Act 2 of 1927 as it was a personal inam and not liable to resumption under that section and that the section itself was ultra vires
the Provincial Legislature.
The Province of Madras (now the
State of Madras) and Sri Meenakshi Sundareswaral Devasthanam,
Madurai were made defendants.
The District Judge dismissed 0. S. No. 1 of 1954, holding
that the inam consisted of both the warams. In 0. S. 2 of 1954
the same finding was repeated and it was further held that the
order of resumption was invalid and without jurisdiction since the
inams in question were personal inams and did not come within
the purview of s. 44B.
The District Judge granted a declara•ion
to that effect and also issued an injunction against the Deva,thanam which had .not taken possession of the land till then.
Against the decision in 0. S. 1 of 1954 the Mission appealed and
H
against the decision in 0. S. 2 of 1954 the Devasthanam and th~
State of Madras filed anneals.
A. S. 734 of 1954 was filed bv the
Roman Catholic Mission against the decision in 0. S. 1 of 1954
286
SUPREME COURT
REPORTS
(1966] 3 S.C.R.
and A. S. 773 and 787 of 1954 were filed -in 0. S. 2 of 1954 by
A
the State of Madras and Sri Meenakshi Sundareswaral, etc. Dev~
thanam, respectively. The High Court decided all the three appeals
on December 14, 1959 pronouncing a separate judgment in A. S.
7 34 of 1954 and disposing of the other two appeals by a commoa
•'
judgment.
The finding that both the irarams were the subject of the ifli11tl
was reversed by the High Court and 0. S. l of 1954 was decreed.
The finding that the inams were personal and, therefore, not liable
to be resumed was reversed and 0. S. 2 of 1954 was ordered to
be dismissed except for the modification that the inam was held
to be of the melwaram only, which was the sole decision in the
<>!her suit.
The lligh Court repelled all contentions about the
ultra i·ires nature of s. 44B.
The High Court certified both the
appeals as fit for appeal to this Coon and this appeal and Civil
Appeal 69 of 1965 (Sri Meenakshi Sundareswaral, etc. Devasthanam, through its Executive Officer v. The Roman Catholic Mission
and two others) have been filed.
This appeal relates to 0. S. 2
of 1954 and is filed by the Roman Catholic Mission with the State
of Madras and the Devasthanam as the respondents.
The companion appeal is by the Devasthanam and the answering mpon-
<lent is the Roman Catholic Mission.
This judgment will dispose of the two appeals.
Before we mention the matters in controversy in this appeal,
we shall give an outline of the transfers by which the Roman
Catholic Mission came to be possessed of the lands.
It does not
appear to have been seriously questioned at any time that these
fonds originally belonged to certain Mahomedans as proprietors.
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It appears, however, (as we shall see presently) that the land
F
itself wa~ not subjected to any grant but that the thurva, that is,
the rent paid in money, alone was the subject of the grant. Althougfi
the right in respect of the concession in theerva was made out in
the names of the Bhattars who were the Archakas of the Devasthanam, both the concession as well as the land were subjected
to alienations.
Even before May 12, 1861 half of MelapappaG
.pathu was purchased by one Krishnaswamy Chettiar, son of
Andiappa Chettiar, and the othei- half was purcha~ed by him on
May 1, 1861.
Similarly, Krishnaswami Chettiar had purchased
a half of Keelapappapathu from the original proprietors.
On
January 4, 1863 one half share in Melapappapathu was
~urH
chased by one Chockalingam Pillai from Krishnaswamy Chettiar.
He also purchased one half of Krishnaswamy Chettiar's part of
l\i:elapappapathu, for the benefit of one Muthuramalingam
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R. c. MISSION v. MADRAS (Hidayatullah, !.)
287
A Pillai.
In October 1864 Chockalingam granted a formal release
in favour of Muthuramalingam.
The other half of Keelapappapathu, which continued with the original proprietors was sold by
them to Krishnaswamy Chettiar (less one kani) on July 18, 1867.
On June 25, 1870 Muthuramalingam Pillai executed a usufrucB
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tuary mortgage of a part of the land released in his favour, to one
V airavalingam Pillai son of Muthuramalingam Pillai.
It is not
clear whether he was his own son but it is not relevant to inquire.
On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half
share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar.
The mortgage of June 25, 1870
was paid off and Krishnaswamy redeemed the property on September 11, 1872. This left out from
Krishnaswamy
Chettiar's
ownership one Kani of land which the original proprietors still
held. On June 17, 1872, Krishnaswamy Chettiar purchased that
land and in this way he became owner of all the lands comprised
in these two appeals.
Krishnaswamy executed a release and sale
deed in favour of Andiappa Chettiar of all the lands and it appears
that Andiappa Chettiar was the beneficiary of the purchases and
thus the real owner.
On October 20, 1894, the Roman Catholic Mission purchased
for Rs. 1,500 and Rs. 6,500 the greater part of Malapappapathu.
E
The remaining portion of this block and the Keelapappapathu
block was purchased by one Anthonimuthu and when he set
up his own title the Mission sued him and obtained a decree in
0. S. 45 of 1895 from the Sub-Court, Madurai West.
The Roman
Catholic Mission has thus been in possession of both the blocks
F from the last century.
We shall now consider the contentions in
the two appeals.
G
The High Court and the Di~trict Judge have differed on two
aspects of this case.
Both the aspects are connected with the
natnre of the inam in dispute.
The first is whether the inam was
of the Melwaram alone or comprised both the warams and the
second is whether the inam was a personal inam which could not
be resumed or one granted for the service of the temple, which
could be resumed when there was an alienation and the service
was stopped.
On the question of the validity of s. 44B of the
Madras Hindu Religious Endowments Act, 1926, the District
H
Judge found it unnecessary to express any opinion in view of his
decision on the nature of the inam which he held to be personal
and not liable to resumption, but the High Court considered the
question and held the provision to· be valid.
In these appeals
288
SUPR!!ME COURT
REPORTS
(1966] 3 S.C.R.
these three points were mainly argued, along with a claim of
A
adverse possession which the Roman Catholic Mission had set up.
We shall begin by considering the nature of the inam-lirst from
the point of view, whether it comprised both the warams and then
from the point of view whether it was a grant to the temple or a
grant for an office to be remunerated by the use of land or a
grant of land burdened with service. We shall next consider the
B
arguments on the basis of which s. 448 is said to be ultra viri',f and
void.
Lastly, we shall consider the question of adverse possession.
As there is no document recording the grant of inam and its
conditions, one has to tum to a number of documents from which
the High Court and the court below have drawn opposite conclusions regarding what was included in the inam.
There is, of
course, no dispute that the inam must
have
comprised
the
melwaram at least.
That it must have done in any event.
Thus
c
the sole question is whether it comprised the kudiwaram also. In 0
reaching the conclusion that both warams were
included, the
District Judge took into consideration certified copies of certain
lea~es from the record of an old case 0. S. No. 124 C'f 1944 of
the Court of Subordinate Judge, Madurai.
These documents are
Exts. B-4, 5, 6 and A-68, 69 and 77.
Ex. B-4 is a karalnama
(agreement) executed for the fasli years 1348 and 1349 by which
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the lessees undertook to hand over I /3 share of the produce as
melwaram and to retain 2/3 share as kudiwaram from the lands
leased out of Keelapappapathu.
Ex. B-5 is another lease for cultivating the whole of Keelapappapathu nanja (wet) lands.
Ex.
B-6 is a muchi/ika in respect of nanja lands in Keelapappapath11
by which lessee undertook to pay half produce as melwaram and
to retain the other half as kudiwaram.
These documents undoubtedly would have thrown light upon the matter but they were
not admissible because they were only copies.
The originals were
not produced at any time nor was any foundation laid for the
establishment of the right to give secondary evidence.
The High
Court rejected them and it was plainly right in so deciding. If
we leave these documents out of consideration, the other documents do not show that the inam comprised the kudiwaram also.
F
G
Ex. A-3 is an extract from the village account of Managiri village,
Mandakulam Taluk relating to inams.
It is for the years 18021803.
The lands are sufficiently identified with the suit lands by
the area. The lands were described as Ste/ather inam Poruppa
ff
manyam, conducted for Meenakshi Sunderashwaral temple.
The
poruppu being a low or qoit rent according to the 5th Report
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R. C. MISSION v. MADRAS (Hidayatul!ilh, !.)
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A p; 765 we get an indication as to what the inam comprised. The
account shows that from the total assessment of 96 Pons 0 fanoms
and 15 thuddus, the poruppu was only 19 Pons 2 fanoms imd
3 thuddus.
Again in Ex. A-5, which is an extract of the Inam
Account of Manigiri village of 1217 fasli i.e., five years later, the ·
heading was Inam Enquiry Mauje (village) Manigiri".
Now the
word Mauje is used in respect of villages in which there are cdtivators owning cultivable lands.
This has been so held for a long
•
c
time.
[See Venkata Sastrulu v. Sitharamadu,(') per Sadasiva
Iyer, J. arid Sethayya v. Somayajulu.]( 2 ) In the remarks colu!llln,
the poruppu amount payable is stated and it almost corresponds
to the poruppu earlier mentioned, and there is a further men1fon
of the service of the temple.
The pattas exhibits A-6 to A-~: of
the years 1856, 1857 and 1860 also speak of sournadayam manibam poruppu which is revenue payable in money at a concess'1on.
The inamdars did not themselves claim in the Inam enquiry nny-·
thing more than the melwaram rights and in Exts. A-10 and A· 11,
which are the lnam statements ( 1862) and the Inam Fair Register
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dated September 25, 1863. the Sta/athnr Pnruppu Manibam is
again mentioned and the Inam were registered in the name; of
Bhattars as the Sthaniks of the temple .
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F
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The only document in which a contrary note was struck was.
the othi-deed (mortgage) Ex. A-64 of 1876 by which Mutbu
Meenakshi had mortgaged her Melwaram interest in half of the
inam for 20 years in favour of Krishnaswamy Chettiar. Muthu
Meenakshiammal was the wife of Vikramapandia Battar the·
sthaneekam of the Devasthanam. This concerned both Melapappapathu and Keelapappapathu and the moragagee undertook to pay
the poruppu. In describing the property it was stated that the
m.elwaram and kudiwaram rights were in the mortgagee's po1session.
This probably represented the true state of affairs because·
Krishnaswamy Chettiar was slowly acquiring through the years
the lands as well as the inam.
A similar statement was mad•: by
Krishnaswamy Chettiar in Ex. A-42 but it does not advance the
case further.
It is obvious that Krishnaswamy Chettiar had
already acquired not only the melawaram out also the kudiwaram.
Neither docuinent really showed that the inam comprised the k udiwaram as well.
There is no other evidence of the inclusio11 of
kudiwaram in the inam and the dealings were with melwaram·
which alone the inamdars claimed at the lnam Enquiry.
R
Although the matter has been discussed carefully by the
High Court, we have re-examined the material and set down here-
(!)I.LR. 38 Mad. 891.
(2) I.LR. 52 Mad~ 453, 463. (P.C.)
:290
SUPREME
COURT
REPORTS
( 1966] 3 >.C.R.
what we consider to be adequate reasons for holding that there
is no proof that the kudiwaram was the subject of the inam.
All
admissible matter points to the conclusion that the m.elwaram
.alone was the subject of the grant. The appellant in Civil Appeal
No. 69 of 1965 took us through the two judgments and pressed
upon us the view of the trial Judge. We have considered the two
views and are of opinion that the I ligh Court has reached the
right conclusion on the admissible
evidence on record.
Civil
Appeal No. 69 of 1965 must thus fail and this finding by u' will
·be read in the other appeal also.
We shall now consider whether the inam was a per.;onal inam
<Jr for the service of the Devasthanam.
The High Court has relied
upon a decision of the Madras High Court in Rasa Kondon v.
lanaki Ammal.(')
lnams are of various
kinds.
Thev
are
classified on the basis of concession in land revenue, th;t i; to
say, whether the whole of the land revenue is remitted or a part,
or whether the land is held subject to a
payment of money.
Where the whole of the land revenuo is remitted the inam is known
by names such as Sarva lnam, Sarva ma11yam, Sarva d11mbala or
darobust inam.
When the right to the soil is not included in :he
inam it is known according to the share which was free such as
Ard/la manyam (half), chaturbhaf;am ( l /4) etc. The third kind
o! inam comprised payment of a quit rent called the poruppu.
The question is whether this inam in which only a poru11pu wns
payable comprised the right to the soil.
In Venkata v. Sltaramadu(') it was held by the Privy Council that there was no presumption in law that an inam grant, even if mack to a Brahmin,
·did not include the kudiwaram.
We have borne this
observation in mind but we hold that the evidence in this case points to
the fact that the inam comprised only the melll'aram.
1t was thus
an iJJam where the land was held subject to payment of an amount
as quit rent.
It was granted to the archaka• and was recorded
in their name.
That they alienated the lands is without any
-doubt and the question is whether the inam could be resumed or
not.
Section 44-B inserted by the Madras
Hindu
Religious
Endowment (Amendment) Act 1934 (Madras Act XI of 1934)
in the parent Act II of 1927 and further amended hy the Amendment Act X of 1946 reads :
"44-B. (I) Any exchange, gift, sale or mortgage,
and any lease for a term exceeding five years, of the
whole or any portion of any inam granted for the
support or maintenance of a math or temple or for the
(I) (1950} 2 M.l..J. 177.
(2) I.l.R. 38 Mad. SJI
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R. c. MISSION v. MADRAS (Hidayatullah, J:)
29 L
performance of a charity or service connected therewith
and made, confirmed or recognized by the British
Government, shall be null and void ..
Explanation.-
(2) (a) The Collector may, on liis own motion,.
or on the application of the trustee of the math or temple
or of the Assistant Commissioner or of the Board or
of any person having interest in the math or temple who
has obtained the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any
part of any such inam, on one or more of the following·
grounds, namely :-
(i) that the holder of such inam or part has made
an exchange, gift, sale or mortgage of the same or any
portion thereof or has granted a lease of the same or
any portion thereof for a term exceeding five years, or
(ii) that the holder of such inam or part lias failed'
to perform or make the necessary arrangements for
performing, in accordance with the custom or usage
of such math or temple, the charity or service for performing which the inam had been made, confirmed
or recognized by the British Government, or any part of
the said charity or service, as the case may be, or
(iii) that the math or temple has ceased to exist or
the charity or service in question has in any way become
impossible of performance.
When passing an order under this
clause,
the
Collector shall determine whether such inam or the inam·
comprising such part, as the case may be, is a grant
of both the melvaram and the kudivaram or only of
the melvaram.
( f) Where any inam or part of an inam is resumed
under this section, the Collector or the District Collector as the case may be, shall by order, re-grant such
inam or part-
( i) as an endowment to tlie math or temple concerned, or
,,.
292
SUPREMI! COURT
REPORTS
[1966] J s.c.R.
Sub-section (I) of s. 44-B was the subject of interpretation
in P. B. Bheemsena Rao v. Sirigiri Paddayella Reddi an4
.others. ( 1 )
The question then was whether s. 44-B (I) covered
a grant of land burdened with service as against a grant for an
-0ffice to be remunerated by· the use of land but resumable when
the senicc was not performed.
In dealing with these two distinct
aspects of an inam grant, Gajendragadkar J. (as he then was)
and Wanchoo J. point out that the former is not a case of a service
grant proper and such a grant can only be resumed if the conditions of the grant contemplate a resumption when the service is not
performed.
The other is a proper service inam and unless service
is performed resumption is inevitable.
They also point out that
prior to the enactment of s. 44-B the inams were governed by the
Board's Standing Orders : rule 54.
That
laid
a duty on
Revenue Officers to see that inams confirmed by the Inam Commissioner as being for the service of some religious or charitable
institution were not enjoyed without the performance of service.
Grants were liable to be resumed when the whole or part of the
land granted had been alienated or lost.
Provision was, however, made to deal wilh such cases in two ways.
Either there
was resumption or the grantee was left in possession and the full
assessment being imposed on him, the difference was made available to the particular charity or institution for the service of
which the grant was made.
Therefore, in the case of personal
inams burdened with service, when the service was not being
performed. whether there was an alienation or not, the full as<cssment being d~manded, the personal portion was left to the grantee
bu1 the com:es,ional portion was given to the charity concerned.
After the enactment of s. 44-B the Board's Standing Order
Ruk: 54 was amended and inams for religious and charitable
purposes were classified :
( i) inams granted for the performance of a charity
or service connected with a Hindu math or
temple: and
(ii) inams not falling under c13ss ( i).
The first two kinds were governed by the provisions of the Madras
Hindu Religious Endowments Act and the second by the Board's
Standing Orders Ruic 54.
Taking this history into account it is
pointed out that s. 44-B (I), in spite of the width of its language
is only open to a restricted interpretation and includes in resumable inams those in which tJ1e whole of the income or a very great
pan is required for the service and not large personal inams with
(!) [1962] t S.C.R. 339.
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R. c. MISSION v. MADRAS (Hidayatullah, J.)
~93
a· small or slight service.
On the other hand grant of land made
to an office-holder to remunerate him for service is always resumable if he ceases to hold office or to perform service.
The rival contentions in this case may now be considered.
The Roman Catholic Mission submits that these are
personal
inams and they do not come within s. 44-B.
This submission was
accepted by·the District Judge.
According to him, the inam was
made to the ancestor of the persons named in the Inam Fair
Register, subject to the obligation to perform service in the temple.
The inam is thus held not to be attached to any office, archaks or
other; nor is the income remuneration for that office.
It is urged
that such an inam is alienable, and if the service continues, the
alienee cannot be distributed and can enjoy the inam. The High
Court accepted the contention of the Devasthanam that the inam
wa., !!ranted for the office of the archakas and for service a.s such
In other words the inam is said to be attached to the office and
thus incapable of alienation and if alienated liable to resumption.
In deciding which it is, certain documents throw a flood of
light.
In Ex. A-3 to which we have already referred, this inam
is called Devedayam inam and again as stalethar inam porupott
manyam "conducted for Meenakshi Sundareshwaral Temple,
thaatie Devasthanam". The inam is entered in the
names
of
Bhattars.
The word Devadayam ordinarily is used in revenue
records to describe lands attached to a temple and in the dictionaries the meaning is 'lands or allowances for the support of a
temple'.
The expression sthalather poruppu manyam or shortly
slhala manyam means land held at a low or quit rent. The word
poruppu also means quit rent.
Thus this document shows that
the Bhattars were granted these lands in inam for the performance
of service of the temple but not granted as inam personal to the
grantee.
The High Court rightly pointed out that the description in the same document "Shanmugasundra Bhattar Mritunjaya
Bhattar inam" was merely a description of the inam with reference to the inamdars, but could not in the circumstances mean
that the inam was their personal inam.
Further Ex. A 11, the Inam Fair Register of 1863, does not
mention the name of the original grantee which it would have
if the grant was personal.
The names of the two Bhattars are
entered but as athanikama of Pagoda Meenakshi Sundareshwaral
and the inam is described as Devadayam for the archakal service,
that is to say, of puja parichakaram in the temple and it is stated
that the Inam Commissioner confirmed the inam.
294
SUPREME COURT
REPORTS
[1966] 3 S.C.R.
Now in a series of cases, the Inam Enquiry has been held by
the Judicial Committee to be a landmark. In Arunachalam
Chetty and Orhers v. Venkatacha/apathi Guruswamigal(') the
utmost importance was attached to the Inam Fair Register, the
preparation of which was described as a great act of State.
Jn
Narayan Bhagwantrao Gosavi Ba/ajiwa/a v.
Gopa/ Vinayak
Gosavi(') this Court held, accepting the finding of the Inam Commission, in the absence of other evidence, that the grant was to a
Devasthan and constituted a Dcvasthan Inam.
Mr. Ramachandra Aiyer attempted to prove to us that the
expression 'act of state' in the Privy Council judgment was a
misuse of the term and cited some cases where the act of state
has been discussed.
We do not find it necessary to refer to them.
The term act of state docs not always mean a sovereign act against
an alien which is neither grounded in law nor does it pretend to
be so.
The term means more than that because it has many
meanings.
In State of Saurashtra v.
Memon l/aji Ismail
llaji(') other meanings of this term arc given.
Here it indicates
an act in respect of which there was an official declaration.
The
Inam Fair Rcgbter incorporated an official declaration which was
the result of detailed inquiries.
All evidence collected in respect
of each inam was carefully sifted and considered before any conclusion was reached or declared.
In the absence of positive and
proper evidence to the contrary such declaration must possess
supreme importance.
It is significant that the Roman Catholic Mission in the plaint
as it was originally filed had said that the office of the archaka was
remunerated by the income of lands in dispute and by the income
from other sources.
However, when the decision sub nom. P. V.
Bheemsena Rao v. Y el/a Reddi of the High Court of Madras was
reported in ( 1954) I M.L.J. 384 it pleaded by an amendment
that the inam was a personal inam.
As the High Court in the
judgment under appeal points out, there was litigation between
the Bhattars am! the Roman Catholic Mission and the evidence
we have discussed, must have been known to the Mission when
the original plaint was filed.
The fact that their pica was that
this was an inam for remunerating the office of the archakas
represented a true reading of these documents.
The Inam Fair
Register speaks of the inam as Devadayam and reads it as permam:nt.
If the inam was to a Brahmin personally it would have
been shown as 'Brahmadayam' and 'hereditary'.
·-----
(1) !..R. 46 I.A. 204.
(2) [t96li! t S.C.R. 77J
13) [196f,J I S.C.R. 537, 543.
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R. c. MISSION v. MADRAS (Hldayatullah, !.)
2 95
Finally in Ex. A-10, which is a statement of Muthumeenak-~hi·
ammal who was in enjoyment of the inam in 1863, it is stated:
"
Particulars as to how the inam
was obtained and the abstract of the deeds.
(7)
Nenjakani 39
During the time of our predecessors the said
Manibam was allotted by the .
previous Government for sthalathar inam of Meenakshi
Sundareswaral and just as our predecesors enjoyed, we
also in the aforesaid manibam, I Muthu
Meenakshi
Ammal half share, I Ponnammal 1/4th share,
we
Kalyana Battar and Bhinna Subba Battar 1/Sth share
and we Villu Battar alias Shunmuga Sundara Battar
1/Sth share, we are in enjoyment of the
aforesaid
Maniba lands in the aforesaid manner and we are paying
the poruppu manyam due in respect thereof as per our
proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed .
We are doing archakam (pooja) and cooking in the
aforesaid temple."
This clearly shows that the inam was always considered as remuneE
ration for archaka service of the temple and on its alienation it is
liable to resumption under s. 44-B. Even before the incorporation of s. 44-B such an inam could have been resumed by Government, under Standing Order of the Board of Revenue Rule 54(1)
(see Anjanayalu v. Sri Venugopa/a Rice Mill Ltd.('). Mr. Ram·
F
chandra Aiyar even attempted to question the correctness of this
case, which has been followed consistently.
The finding of the
learned District Judge, Madurai, that this was a personal inam to
an individual was erroneous and the High Court was right in
reversing it.
Mr. Ramchandra Aiyer next contends that s. 44-B was void
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when the legislature purported to enact it, and, therefore, no action
could be taken under it.
This argument is many faceted and
often it is obscure.
Shortly stated, the argument is this : 'The
inam was confirmed on September 25, 1863 under title deed !354
by the Inam Commissioner. The alienations of the
rights,
whatever they be, were before that date. Prior to the Inam ComH
mission there was no prohibition and the .confirmation could not
affect prior alienations.
As the inam deeds were validated by an
(ll I.L.R. 45 Mad. 620 (F.B.) at 624.
10 Sup. CI/66-6
296
SUPllEMB COUllT J.EPOllTS
(1966] 3 S.C.R.
Act of the British Parliament (32 and 33 Viet. c. 29) the right
to forfeit the lnam concession or to resume it could be exercised
by the Crown only as the inam became a contract between the
Secretary of State for India and the inam-holder.
Section 44-B
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is said to be void because it confiicted with this position and
enabled the Revenue Officers to order resumption.
The resumption or forfeiture itself was said to be ineffective without the order
B
either of the Governor General or Governor in exercise of his individual judgment and also because the right to resume the inam was
said to be extinguished by prescription.
The resumption was
characterised as a forfeiture and was said to be void under s. 299
of the Government of India Act, 193!! and Arts. 31 and 296 of
the Constitution. Madras Hindu Religious and Charitable EndowC
ments Act (XIX of 1951) which by s. 35, reenacts s. 44-B was
further said to be void as, it was said, it seeks to protect only Hindu
religious institutions and not those belonging to other religions.
The power of the provincial legislature to enact s. 44-B in 1934
or 1946 was also challenged under the Government of India Act
1915 and the Government of India Act, 1935, respectively.
The District Judge did not consider any of these arguments
except the last, because he decided the issue of resumption against
the Devasthanam and the State Government.
The District Judge
decided that the section was validly enacted by the provincial
legislature.
The District Judge, however,
mentioned
in
the
judgment all the arguments which were raised before him and they
were the arguments which we have set down above. However, in
the High Court most of these arguments do not appear to have
been advanced because the High Court judgment is silent about
them.
We intimated Mr. Ramchandra Aiyer that we would not
allow any argument to be advanced which the High Court was
not invited to consider.
In the High Court the validity of ~. 44-B
of the Madras Act and s. 35 of the Act of 1951 was considered
from the point of view of the powers of the Provincial legislature
when the former was enacted and from the angle of the Constitution in respect of both.
We shall consider these arguments mainly
from the same two standpoints.
The powers of the Provincial legislatures under the Government of India Act, 1915 were determined under the Devolution
Rules made bv the Governor General in Council under ss. 45-A
and 129-A of the Government of India Act. By these rules a
dassification of subjects was made for the purpose of distinguishing the functions of the local governments and local lcgislatnres
<>f Governors' provinces from the functions of the Governor
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A General in Council and the Indian Legislature. The Devolution
Rules set out in two lists the subjects so classified and any matter
in the list of provincial subjects set out in Part II of Schedule I
was excluded from any central subject.
Under rule 4 of these
rules, if any doubt arose as to whether a particular matter did or
did not relate to a provincial subject, the Governor General in
B Council was to decide whether the matter did or did not so relate
and his decision was final.
At this distance of time, it is somewhat inept for a Court,
without a proper inquiry, to decide whether the powers of the
Provincial legislature did or did not extend to the making of
c
s; 44-B.
For aught we know, this identical question might have
been raised and the decision of the Governor General in Council
obtained. That would be end of the matter.
No one seems to
have challenged the section although numerous inams were
resumed under that section. However, considering the matter in
principle we do not feel any doubt about the competence of. the
D Provincial legislature.
As the District Judge and the High Court
have rightly pointed out, the powers of the Provincial legislatures
extended over land tenures, land revenue administration and
religious and charitable endowments.
A concatenation of these
several powers must obviously furnish adequate scope for undertaking the most comprehensive legislation on the subject of inams
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in general and inams connected with religious and charitable
endowments in particular. Section 44-B was thus fully within the
competence of the Provincial legislature.
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The next question which was considered by the High Court
was whether resuming and regranting the inam to a Hindu temple,
offended the Constitution.
The High Court did not accept this
submission. It is obvious that by the transfer of the inam the
temple was deprived of a benefit and the transferee had no right
to hold that benefit. What was done was to restore to the temple
what it had lost and this was not putting a denominational religious institution at an advantage.
Once we hold that the Provincial legislature had competence
to enact the impugned section, it would follow that the section
would be sustained by s. 292 of the Government of India Act,
1935. Indeed, the power of the Provincial legislature under the
Act of 1935 was no whit less than that of the legislature which
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enacted the section.
Any amendment of the section in 1946
would have clear authority even under the Act of 1935. And the
some may be said of the Madras Hindu Religious and Charitable
Endowments Act, 1951 vi.~ a vis the Constitution.
2Q8
SUPREME COURT
REPORTS
(1966] 3 S.C.R.
The theory that contracts between the Secretary of State for
India and the inam-holders came into existence after the passing
of 32 & 33 Viet. c.