@JUDGMENTTAG-ORDER
Srinivasan, J.@mdashIn Miscellaneous Petition No. 1 of 1960, the Deputy Commissioner, Hindu Religious and Charitable Endowments, made an order granting a certificate u/s 101 of the Hindu Religious and Charitable Endowments Act, 1959. The certificate was granted in respect of 31-54 acres of land alleged to belong to Sri Madhyarjunaswami Temple. The temple claimed that the lands in question formed part of Devadayam Inam, confirmed by the Inam Commissioner under title deed No. 585; that certain persons had been permitted by the then trustees of the temple to be in possession and enjoyment of the lands in lieu of their remuneration for performing the services of Othu Oodal and Nadhaswaram. That the last holder of the inam lands was one Palaniandi. The present Petitioner, Valambal, filed a suit, Original Suit No. 26 of 1955, Sub-Court, Tiruchirappalli, and obtained possession of the lands from the said Palaniandi. It was claimed by the temple that Valambal was not doing any service, that she is not entitled to be in possession and that the temple was accordingly entitled to resume possession. Whatever the disputes, there might have been between Valambal and Palaniandi, the temple claims that it is unaffected by the decision in those disputes. Valambal, the present Petitioner, contended before the Deputy Commissioner that though the lands had been confirmed in the name of the temple, the lands had been granted as service inam to the ancestors of Valambal for devadasi service. It was stated that this arrangement had been come to long before the Inam Settlement and was also recorded in the Inam Register. The previous holder of the devadasi service is said to have been one Dasi Angamuthu, to whom Valambal claims to have succeeded as the adopted daughter. This Angamuthu died in 1923. During her minority, another person was deputed to perform the dasi service on behalf of the minor Valambal. Later, she herself was performing it till 1947. On the passing of Act XXXI of 1947, declaring devadasi service to be illegal, Valambal continued to be in possession in her own right. It was contended by Valambal that in these circumstances Section 101 of the Act of 1959 has no application and that the proper remedy of the temple is to sue in the Civil Court for recovery of possession.
2. It is not necessary to examine in detail the reasons which induced the Deputy Commissioner to issue the certificate. Briefly put, the Deputy Commissioner thought that since the purpose for which the arrangement was entered into between the devadasi and the trustees of the temple had been declared to be unlawful and was prohibited by statute, the devadasi could not claim a right to possession. The contention that notwithstanding that Act, the devadasis who were in possession were entitled to continue and that the lands could only be enfranchised by suitable proceedings under the Act was not accepted by the Deputy Commissioner, who appears to have thought that unless the grant was one which was made by the appropriate authority and confirmed by the Inam Commissioner in the name of the temple, the temple servant could not be recognised as one entitled to possession, when the service could no longer be performed and was not in fact performed.
3. This order of the Deputy Commissioner is attacked in this writ petition wherein the Petitioner Valambal prays for the issue of a writ of certiorari to quash the impugned order as tainted by lack of jurisdiction. It is alleged that till Act XXXI of 1947 was passed, Valambal and her predecessors were doing devadasi service. On account of the Act which prohibited that service, the service could no longer be performed. In Madras Act II of 1927, Section 44A which was inserted provided for the enfranchisement of devadasi manyams from the conditions of service attached thereto. It is claimed that even before Act XXXI of 1947 was passed, it was the intention of the State to make service holders, such as the devadasis, the owners of the land. Act XXXI of 1947 specifically saved the operation of Section 44-A of Act II of 1927 referred to. In 1944, the temple attempted to take proceedings for resumption of these lands. But the trustees of the temple were directed to recover possession by proceedings in Civil Courts. The temple did not resort to any such proceedings. On the passing of Act XXXI of 1947, the Petitioner herself moved the Collector Tiruchirappalli, u/s 44-A of Act U of 1927 for enfranchisement of the land. But the petition was, however, mistakenly rejected on the ground that that section would apply only to a grant made by the Government. Notwithstanding this, the Petitioner continued in possession. At about that time, on account of certain quarrels between herself and her brother Palaniandi, the latter put forward the claim that the properties were not attached to devadasi service but to Nadhasuram Service. The Petitioner filed Original Suit No. 26 of 1955 on the file of the Sub-Court, Tiruchirappalli, and in that suit obtained a decree for possession and mesne profits. Palaniandi failed in his appeal to the High Court. The contention that the land constituted devadasi inam was accordingly upheld in those proceedings by the Civil Courts. It is claimed that the Deputy Commissioner has failed to take into account the evidentiary value afforded by the judgments of the Civil Courts. It is contended by the Petitioner that though the temple was not economies a party to the Civil Suits, the findings of the Sub-Court and the High Court in that regard cannot be ignored by the Deputy Commissioner, and that his failure to consider that evidence constitutes an error of law. It is further urged that even assuming that the view taken by the Deputy Commissioner is correct the Petitioner was treated by the temple in the proceedings before the Deputy Commissioner as a trespasser. If so, it is claimed that the proceedings u/s 101 of the Act seeking a certificate are wholly inappropriate. It is also contended that the temple itself has filed Original Suit No. 57 of 1961, on the file of the Sub-Court to recover mesne profits of Rs. 19,000 on the ground that the Petitioner has been in possession without any title. The questions as to the title to the property and whether the lands formed part of the devadasi inam are pending adjudication in that suit. In that suit also, the temple''s contention is that the Petitioner is a trespasser and it is the contention of the Petitioner that having initiated proceedings of that nature based on such contentions, it is not open to the temple to ask for a certificate u/s 101, where the character of the person from whom possession is sought to be taken is of a totally different kind. Lastly, it is contended that under the relevant provisions of the Act, proceedings in enfranchisement have been set afoot and are pending. In these circumstances, resort to Section 101 of the Act is only an attempt to circumvent Section 40 and to obtain a provisional declaration or the title of the temple in summary proceedings which is opposed to the law.
4. In the counter-affidavit filed by the Respondent temple, it is denied that the lands constitute devadasi inam. One hundred and odd cawnies of land were granted absolutely to the temple and the grant was confirmed by the Inam Commissioner. It is stated that the temple, as the absolute owners of the land, parceled out the lands to its several service holders and allowed them to remain in possession of the respective portions in lieu of services to be rendered to the temple. It is admitted that the lands were given by the then trustees of the temple to the then service holder. But it is denied that one of the service included the service of devadasi. Even during the Inam Settlement it was noticed that the persons in possession who were performing the services were so placed in possession, as a result of a private arrangement between the trustees and them and for that reason their possession was not regarded as forming the basis of Separate inams justifying the issue of separate title deeds. It is further contended that Angamuthu from whom the Petitioner claims title had herself admitted the fact in 1904 by a muchilika executed in favour of the then manager of the temple that her possession of the lands was on the basis of an arrangement with the temple. Therein she conceded the right of the temple to resume possession if she failed to perform the services. The contention of the temple is accordingly that this was purely a contractual arrangement. When once service is ceased to be performed, the Petitioner had no legal basis for continuing in possession of the lands.
5. It is denied that the decisions in the civil suits between the Petitioner and her brother Palaniandi are binding upon the temple. It is also contended that the proceedings for enfranchisement initiated by the Revenue Authorities are not relevant. It is admitted, however, that the temple has filed a suit Original Suit No. 51 of 1961 against the Petitioner and that an issue relating to the title of the lands has been framed by the Court in that suit. It is contended that the fact does not disentitle the Deputy Commissioner from exercising his jurisdiction u/s 101 of the Act.
6. It is unnecessary to set out the contentions of the Deputy Commissioner in his affidavit.
7. In a reply affidavit filed by the Petitioner, it is again asserted that the lands -were allotted to the ancestors of the Petitioner for doing devadasi service and that the relevant provisions of the Act dealing with the enfranchisement of lands allotted for devadasi service should be followed and not Section 101 of the Act.
8. At the outset, it may be stated that there is no dispute that the grant of these lands to the ancestors of the Petitioner was not by the Government but was a result of a private arrangement between the persons who performed the service and the then trustees. This arrangement appears to have been in existence long before the Inam Commission commenced its proceedings. The validity of the such an arrangement cannot be disputed at this point of time on the basis of any lack of power on the part of the trustees to alienate portions of temple property. If, therefore, the ancestors of the Petitioners were placed in possession of a parcel of land in lieu of remuneration for performing certain services, that is undoubtedly a valid arrangement. The only question that has really to be examined is whether the resumption of the land by the temple is provided for in a particular manner by the relevant provisions of the Act, or whether Section 101 is the appropriate provision that would apply.
9. Section 44-A(1) deals with a variety of situations that may arise. One is, where the remuneration for any service to be performed by a devadasi in a temple consists of lands granted or continued by the Government, the Government shall enfranchise the said lands from the condition of service by the imposition of quit-rent. The lands are thus disassociated from the service tenure and become the absolute property of the holder. The next is where the remuneration consists of assignment of land revenue so granted or continued by the Government, the Government shall enfranchise such assignment of revenue from the conditions of service. It would be seen that these two classes refer to grants of land or land revenue, or partly of land or partly of land revenue, where the grant has been made or continued in respect of such service by the Government. The present case will not admittedly fall within the scope of this part of the provision. Sub-section (2) deals with a case where the remuneration for such service consists in whole or in part of lands or the produce of lands not falling under Sub-section (1). It is quite clear from the wording that that would cover cases where the temple, as the owner of, the lands, places the lands themselves in the possession of persons performing the service as remuneration for such service. Undoubtedly, an arrangement between the institution on the one hand and the service holder on the other would come within this provision, so long as the grant to the service holder is not one made by the Government. Sub-section (2) of Section 44-A provides for the manner in which the enfranchisement of the service should be effected. The Collector is enjoined under this provision to determine the amount of the Tent payable on the lands after holding such enquiry as may be prescribed. Sub-section (5) provides, that no obligation to render any service relating to any temple to which any devadasi may be subject by reason of any grant of land or Assignment of land revenue or produce derived from land shall be enforceable on such land, the assignment or produce being enfranchised or freed, as the case may be, in the manner herein before provided. The rent fixed under Sub-section (2) is, under Sub-section 7(b), made payable to the devadasi concerned during her life-time and, after her death, to the temple concerned.
10. At the outset, I may state that though the temple was not a party to the suit between the Petitioner and her brother Palaniandi, the principal point to be decided in that suit was whether the grant of the land in the instant case was for dasi service or for Nathaswaram service. That decision of the civil Court accordingly forms a valuable piece of evidence in support of the Petitioner. It may also be mentioned that when the decision in the civil suit was brought to the High Court in appeal, the question was dealt with as if there could be no dispute that a part of the lands at least had been granted for dasi service. The Deputy Commissioner was not justified in ignoring this evidence. It may also be mentioned that on an earlier occasion, the temple itself purported to start proceedings under the Hindu Religious Endowments Act of 1927 claiming to recover the lands from the possession of the Petitioner, but that petition was dismissed directing the temple to proceed by resorting to the appropriate provisions which provided for resumption of devadasi service inams. A prima facie view can justly be taken that the Petitioner�s possession of the lands is in her right as an ex-devadasi, the lands having been granted to her and her ancestors as remuneration for the services to b& rendered to the temple. The question then arises whether the temple is entitled to invoke Section 101 of the 1958 Act in seeking to recover possession.
11. Mr. Vedantachari, learned Counsel for the Petitioner, has referred to the Statement of Objects and Reasons which preceded the enactment of Section 44-A. While the object was to discontinue the system of dedication of young girls to Hindu temples, which, though it might have started with the highest motives, had, in course of time, degenerated into objectionable practices, the recommendations which preceded the insertion of this section was on these lines. The Select Committee noticed.
They have accordingly recommended the insertion after Section 44 of a new section instead of a mere proviso laying down a procedure for the enfranchisement of inams granted by Government as well as by private individuals, and it is clear that on such enfranchisement, a devadasi shall be entitled to enjoy the inam free from the obligation of service. In the case of an inam granted by the Government, the Committee have provided for the payment of quit rent by the devadasi to the temple, while in the case of Post Settlement grants by proprietors of estates and grants made by ryotwari landholders as well as by the temples themselves, they have thought it fair and equitable that the devadasi who is freed from her obligation to do service and allowed to take a freehold in the lands in her possession should pay a rent to be fixed by the Collector to the temple concerned....
It was this recommendation that took the shape of Section 44-A.
12. The case of service inams, of their resumption and re-grant, was considered in a decision of the Andhra Pradesh High Court in Sri M.O. Temple v. Saride Manikyam AIR 1957 A.P. 643, 648. The scope of Section44-A came up for consideration. The facts were that the executive officer of a temple sought for a declaration of the title of the temple and for recovery of possession of certain lands from persons who claimed a right to possession and enjoyment as remuneration for rendering devadasi service. The Defendants conceded that the title to the lands in dispute vested in the Deity. The case was set up by the temple that the Defendants had been engaged only on a contractual basis for doing devadasi service in the temple, and for such period as they perform the service were permitted to enjoy the income from the land. The temple issued a notice dispensing with the services and calling upon the Defendants to deliver possession. An application u/s 78 of Act II of 1927 having been dismissed, the temple filed a suit. In that case, the Defendants contended that the Plaintiff�s remedy was only by way of an application u/s 44-A(2) of Madras Act II of 1927. The learned Judges observe:
Section 44-A(2) does not apply to service inams falling within Section 44-A(1). Section 44-A(2) contemplates cases of permanent grants for doing devadasi service made by Zamindars after the Permanent Settlement or by ryotwari proprietors or by the temples themselves. In soon cases, the Legislature appears to have thought that, the devadasi, who was freed from the obligation to render service and allowed to retain the land should pay a rent to be fixed by the Collector to the temple concerned. Section 44-A(2) also contemplates cases where the grant by way of remuneration for services is of a permanent nature, though not made or confirmed or continued by the Government as u/s 44-A(1). In those cases also, succession to the office or service is governed by the personal law of the office holder or service holder or by the personal law as modified by legislation. The land which is the emolument or property annexed to the service follows the service and the right to the enjoyment of the land rests upon the right to the office, the succession to which devolves according to the personal law of the service holder. In the case of service inams falling within Section 44-A(2), the Legislature thought that it would be fair and equitable that the devadasi who was freed from her obligation to do service should be allowed to enjoy the rent of the land as fixed by the Collector during her lifetime and thereafter the benefit of the rents should go to the temple for whose benefit the service was intended.
On the facts of the case, the learned Judges came to the view that the arrangement between the Executive Officer of the temple and the devadasi was of a contractual nature and that there had been successive arrangements between them from time to time with varying terms and conditions. The arrangement was not of a permanent character. The temple was accordingly free to deal with the lands as it pleased. It was also noticed that a permanent alienation of the temple lands by a trustee is prima facie a breach of trust. It was observed:
Where performance of a contract is required to be in person and the personal qualifications of the promissor are the considerations for the contract, death or disablement of the promissor discharges the contract and frees the other party from liability. The contract here was one for actual personal services and its performance by the promissors has become impossible and the contract has therefore become void. None of the agreements, provided for the continuance of the service, of the enjoyment of the rents of the lands by the heirs of Sanyasi and Mahalakshmi or the other members of the families.
It was found that there was no agreement in writing between the temple and the Defendants. The result was that the suit of the temple for possession of the properties was decreed.
13. Considerable reliance has been placed upon this decision by Mr. T.M. Chinnayya Pillai, learned Counsel for the Respondent temple. One point that I would emphasise at this stage is that the decision that was rendered was as a, result of a suit, while the present proceedings are those in respect of which a certificate had been granted by the Deputy Commissioner u/s 101 of the Act. Another is that it was found that the tenure was not permanent and heritable, which aspect of the matter has not received any real consideration. In the present case.
14. Section 101 of Act XXII of 1959 is in these terms, omitting portions which are not quite relevant:
Where a person has been appointed (a) as trustee or Executive Officer of a religious institution or (6) to discharge the functions of a trustee of a religious institution.....and such person is resisted in, or prevented from, obtaining possession of the religious institution or of the records, accounts and properties thereof, by a trustee, office-holder or servant of the religious, institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession, or by any person claiming or deriving title from such trustee, office holder or servant not, being a person claiming in good faith to be in possession oh his own account or on account of some person not being such trustee, office-holder or servant....
the trustee, can obtain a certificate from the Commissioner to the effect that the property in question belongs to the religious institution. Thereafter, the trustee can initiate proceedings in the Court of Magistrate and obtain delivery of possession. It will be noticed that this section can be used by the trustee or executive officer against a certain class of persons defined in the section. A trustee, office-holder or servant of the religious institution who has been dismissed or suspended from office is one category against whom certificate proceedings can be started. Another class is represented by persons claiming or deriving title from such trustee, officer-holder or servant who has been suspended or dismissed. It does not apply to those persons who claim in good faith to be in possession on their own account or on account of some person who is not a dismissed or suspended trustee, officer-holder or servant. In the present case, the claim of the Petitioner is rested upon the contention that the lands had been given on service tenure for the performance of devadasi service. The Petitioner does not come within the category of a servant who has been dismissed or suspended from office or is otherwise not entitled to be in possession.. Nor does she claim or derive title from any one of such persons. What she in short contends is that since this was a grant of a particular kind and the statute has made special provision for the manner in which the land granted as remuneration for devadasi service should be disannexed from such service and dealt with, the temple is not entitled to resort to Section 101. Even assuming that the contention of the Respondent temple is correct, viz., that the arrangement between the trustee on the one hand and the Petitioner�s predecessor on the other was merely contractual in nature, the question would still arise whether the temple could dispossess a person who was lawfully in possession by resorting to this provision. It may be recalled that the temple itself has filed a suit against the Petitioner treating her as a trespasser. Mr. Chinnayya Pillai does not contend that if a person unlawfully trespasser ,upon the properties of the temple, Section 101 would be applicable. The normal proceeding which the law recognises in such a case is by the institution of a suit or recovery of possession. Section 101 provides a special machinery in a well recognised class of cases. Can it be said that by reason of Act XXXI of 1947, which declared the devadasi service to be illegal, the possession by the Petitioner of the lands which she was entitled to enjoy for the performance of devadasi service became itself illegal? That she was no longer bound to perform the devadasi service and the temple was equally disentitled from asking her to perform the service seems to me to be far different from stating that the person in possession is otherwise not entitled to be in possession. Mr. Chinnayya Pillai concedes that if it was a grant which was otherwise than contractual in nature, the proceeding in assertion of the rights of the temple could only be by resorting to Section 44-A(2). But he contends that when it was a purely contractual arrangement entered into between the trustees and the service holder, Section 44-A(2) has no application.
15. In support of this contention, a muchilika by Angamuthu in 1904 has been referred to. In this muchilika it is stated thus:
Our family have been doing Periamelam and Chinnamelam services and Bhairavai service in the said temple. My father was looking after these services. My father is dead. He has no male heir. I am myself performing the said services by employing persons on my behalf in addition to my allotted Dasi service. For that purpose I am enjoying the maniam lands by paying cist, etc., paid by the Devasthanam to the Government as detailed below. Myself and the persons nominated by me will as usual perform the said services correctly. If there is no heir to me after my lifetime, I have no objection to the Devasthanam taking possession of the lands and have the services performed. Further, if I and the servants nominated by me fail to perform the services properly, I agree that the Devasthanam may for the first time fine, second time suspend and for the third time, without regard to any condition, take possession of the lands and employ other persons.
16. This document is relied upon to a great extent by Mr. Chinnayya Pillai in support of his contention that this is a pure contract and no grant, which would attract the application of Section 44-A(2), can be spelt therefrom. But this document does certainly indicate that the arrangement had been going on from the days of Angamuthu''s father, and after Angamuthu, the Petitioner continued to be in possession of the lands performing devadasi service and presumably arranging for the performance of other services. It also appears to have been understood by the parties that the interest which Angamuthu''s father possessed was of a heritable nature; at any rate, that was what obtained in actual practice even for the days prior to the Inam, Commission. The question whether under these circumstances the grant would come within the scope of Section 44-A(2) is a matter which has to be investigated, and it cannot be done in the course of writ proceedings. The proper remedy would undoubtedly be by way of a regular suit.
17. Mr. Vedantachari, learned Counsel for the Petitioner, has referred to Sigadi Garu v. Nissanka Bahadur Garu AIR 1916 Mad. 626. The case was that of a Dharmila Service Inam grant, the inam being for personal service'' to the zamindar. The decision was that though the zamindar had a right to resume the grant, he was not entitled to evict the occupants from the lands, as resumption did not imply dispossession but only taking back of that which had once been given. This decision was followed in
18. I do not wish in this writ petitions to adjudicate upon all the aspects that have been presented before me. The only point that I need consider is whether in the circumstances the Deputy Commissioner was justified in granting the certificate. The more so, when the temple itself had sought the recovery of possession from the Petitioner treating her as a trespasser. If the Petitioner bears such a character, it hardly requires to be emphasised that Section 101 of Act XXII of 1959 will have no application whatsoever.
19. I am accordingly of the opinion that the matter is not one which was within the scope of Section 101 and the grant of a certificate in this case is wholly without jurisdiction. The proper remedy of the temple would be, if it is its contention that Section 44-A(2) does not apply, to sue for recovery of possession in the Civil Court. The petition is accordingly allowed. There will, however, be no order as to costs.
