Andhra HC (Pre-Telangana)
Sri Jagannadhaswamy Temple, Rep. By ... vs Garuda Venkata Rao (Died) By Lrs. And ... on 12 October, 2006
Equivalent citations: 2006(6)ALD532, 2007(1)ALT86
JUDGMENT G. Bhavani Prasad, J.
1. Aggrieved by the dismissal of the suit with costs by the judgment and decree dated 13-11-1991, the unsuccessful plaintiff in O.S.No. 84 of 1984 on the file of the I Additional Subordinate Judge's Court, Visakhapatnam, filed the present appeal.
2. The facts leading to the appeal are that Sri Jagannadhaswamy Temple, Visakhapatnam represented by its Executive Officer filed the suit claiming that the suit schedule vacant site of 1064 square yards belonging to the plaintiff was granted to Garuda Ramayya, son of Venkayya, the father of the 1st defendant under a permanent lease dated 8-4-1908 by the then trustees on a lumpsum payment of Rs. 400/- and for an annual rent of Rs. 50/-for the purpose of carrying out repairs to the temple, giving liberty to the lessee to make any constructions. The trustees had no power to grant a lease in perpetuity irrespective of the adequacy of the rent and such leases are not saved by the relevant statutes. After the death of the then trustee Garuda Sanyasayya Setty in 1936, the property was managed by the mother of the present hereditary trustee during his minority and after attaining majority the present hereditary trustee took over the management and the Executive Officer took charge on 2-2-1972. The lease amount of Rs. 50/- was being collected from the 1st defendant by the hereditary trustee in ignorance of the legal rights and after appointment of the Executive Officer, such collection was stopped. The plaintiff issued a notice on 27-9-1982, for which a reply was given on 3-12-1982. The invalid permanent lease is not binding on the plaintiff and the possession of the lessee is that of a trespasser. The plaintiff is also entitled to Rs. 500/- per annum as mesne profits and the suit was within time under Section 10 of the Indian Limitation Act. Hence, the suit for declaration of invalidity of the permanent lease, ejection of the defendants after removing the structures, mesne profits at Rs. 500/- per annum from 2-2-1982 till delivery of possession and for costs.
3. The 1st defendant resisted the suit claiming that under the document dated 8-4-1908, a permanent grant of the land itself was made for an annual 'kattubadi' of Rs. 50/-, but not any rent. As per the grant for valid consideration, the 1st defendant made huge constructions worth more than Rs. 4,00,000/- after obtaining permission from the municipality using the premises for business and residence. The transaction is neither a lease nor invalid and any trust or trust deed is not admitted. The annual 'kattubadi' was being collected and a suitable reply was given to the plaintin's notice. No right of termination or re-entry was reserved in the document. Some kancherulu constructed thatched houses in the suit land without any income to the temple by the time of the permanent grant and even assuming the transaction to be a permanent lease which was subsisting by the time of A.P. Act XVII of 1966, the plaintiff has no right to evict the 1st defendant without any action under the statute to get the lease cancelled or to treat it as null and void. The unproductive and waste property granted for legal necessity for a very substantial consideration at that time cannot be questioned and the temple in a dilapidated condition without funds had to be repaired, for which the grant was made. A square yard of land was not fetching 4 annas at that time and the lease which stood the test of time and the possession of the 1st defendant since 1908 in his own right cannot be questioned. If he is a trespasser as contended by the plaintiff, his title by prescription on enjoyment for more than the statutory period has become perfected. Section 10 of the Limitation Act has no application and the 1st defendant is not liable to pay any mesne profits. Even earlier notices were issue on 24-7-1940 and 16-1-1973 by the grantor's son Garuda Chandra Bangar Raju, to which suitable replies were given on 28-8-1940 and 27-1-1973. The lease being not questioned since then, the suit is barred by time. In any view, the 1st defendant cannot be evicted without paying compensation for the improvements and investments made in the land and the property which fell to the 1st defendant's share in the family partition in 1944 did not yield any income till 1972 till the construction of ground floor in 1972 and the first floor in 1982. The appreciation in value due to the same made the plaintiff file the suit. Hence, the suit be dismissed with costs.
4. The 1st defendant died during the pendency of the suit and defendants 2 to 9 were impleaded as his legal representatives and when the 5th defendant died later, his legal representatives were impleaded as defendants 10 to 13. The case of these legal representatives is that in a family partition the suit property fell to the share of the 5th defendant.
5. The trial Court framed the following issues for trial.
1. Whether the plaintiff is entitled for the declaration as prayed for ?
2. Whether the plaintiff is entitled for ejectment of the defendant and for removing the structure thereon ?
3. Whether the plaintiff is entitled for mesne profits as claimed for ?
4. Whether the suit is barred by time ?
5. Whether the defendant has otherwise acquired title to the said property by prescription ?
6. Whether, in the event of a decree, the plaintiff has to pay compensation to the defendant for the improvements and investments made by him ?
7. To what relief ?
6. After examining P.W.1 and D.W.1 and marking Exs.A.1 to A.15 and B.1 to B. 15, the trial Court rendered the impugned judgment holding that as conceded by the Counsel for the defendants the property conveyed under Ex.A.1 permanent lease dated 8-4-1908 is the property of endowment and the plaintiff and that a permanent lease for legal necessity for a very substantial consideration at that time in respect of an unproductive property lying waste is valid. It is further held that the suit is barred by time in the light of continued possession and enjoyment of the property by the lessee since 1908 and the absence of any action by the plaintiff since the reply to its notice given in 1940. Consequently, it held the plaintiff to be disentitled to any declaration or ejectment of the defendants after removal of the structures or mesne profits. It also concluded that the 1st defendant acquired title to the suit property by prescription as no rent was paid to the plaintiff admittedly since 1971 and the 1st defendant enjoyed the property in his own right. It did not consider the question of payment of any compensation for any improvements and investments made by the 1st defendant, as the plaintiff's claim was negatived and consequently dismissed the suit with costs.
7. Aggrieved by the same, the plaintiff contended in this appeal that the permanent lease beyond the powers of the trustee should have been held invalid, more so, for a paltry sum of Rs. 50/- per annum. The successive Endowments Acts or the Trusts Act do not authorize leases beyond a certain period and no application was made under A.P. Act XXX of 1987 to regularize the lease. The 1st defendant in possession under a lease paying annual 'kattubadi' could not have perfected his title by adverse possession and there was no special circumstances warranting the grant of lease. The lessee sending rents by money orders never had an animus to prescribe title by adverse possession and when the Endowments Acts prohibited long term leases, the suit need not have been filed within 12 years from the date of death of the trustee, who granted the lease. The plaintiff owning Ac.65-00 of dry lands and Ac. 12-00 of wet land even in 1908, would have raised any necessary money otherwise than by grant of a permanent lease and the defendants did not prove any legal necessity for lease. Sections 70 and 74 of A.P. Act XVII of 1966 and the decision reported in M. Venkateswarlu v. Joint Commissioner 1973 (2) An. WR 203 (sic 280) were not considered and the trial Court failed to exercise its inherent jurisdiction to revise the rent to meet the ends of justice. Hence, the plaintiff sought for upsetting the judgment and decree in question.
8. Mrs. M. Vidyavathi, learned Counsel for the plaintiff has reiterated the various grounds of appeal and contended that the absence of any legal necessity for the temple owning vast properties was not properly appreciated and the permanent lease without such necessity was beyond the powers of the then trustee. As the lease continued, no question of limitation arises and the successive Endowments Acts prohibited such leases.
9. Sri K. V. Subrahmanya Narusu, learned Counsel for the respondents contended that the permanent lease for legal necessity was valid and the suit is barred by time in view of Article 134-B of the Limitation Act, 1908. The findings of the trial Court based on admitted facts and evidence on record are eminently justified.
10. Both the learned Counsel referred extensively to relevant statutes and precedents, which will be referred to in due course.
11. The points that arise for consideration in this appeal are:
1. Whether the permanent lease is invalid ?
2. Whether the defendants acquired title by prescription ?
3. Whether the suit is barred by time ?
4. To what relief ?
Point No. 1:
12. P.W.1, the present hereditary trustee of the plaintiff, while reiterating the suit claim admitted that Indradyumna Temple is at one furlong from the plaintiff temple and that during the festival Rathayatra in June in Ashadamasam, the deities of Sri Jagannadhaswamy, Sri Balabhadra Swamy, Sri Subhadra devi and Sri Sudarsana Swamy will be taken in a Ratham and after the Rathayatra the deities will be kept in Indradyumna Temple for 10 days and then taken back to the main temple. He stated that the deities will be decorated every day in one 'avataram' during the said 10 days and the devotees will offer prayers and give donations. The festival was stated to be celebrated since times immemorial and thus, it is clear that Indrayumna Temple is part of the plaintiff temple as stated in Ex.A.1 deed dated 8-4-1908. Though P.W.1 could not trace the origin of the endowment or produce any documents, the suit site belonging to the plaintiff temple is not in dispute and it was entered as one of the properties of the plaintiff temple in Ex.A.2 register of properties. Exs.A.3 to A.5 about the exemption under Urban Land (Ceiling and Regulation) Act, Ex.A.6 extract from the town survey register, Exs.A7 to A.10 D.C.B. registers, apart from Ex.A.11 plan corroborate the suit site to be belonging to the plaintiff temple and even the 3rd defendant as D.W.1 admitted his grandfather coming into possession of the suit site under Ex.A.1. While the suit site belonging to the plaintiff is, thus, not seriously in dispute, P.W. 1 admitted that it is true that some blacksmiths residing in the suit site committed default in payment of rent and the plaintiff got them evicted through Court at that time. He also admitted that Ex.A.1 recited that no income was derived from the suit site and that the plaintiff had no money to get the repairs of Indradyumna Temple done and that it was necessary to raise money of for the purpose, due to which the lease was granted. He admitted the other recitals in Ex.A.1 and he does not know how Garuda Ramayya enjoyed the suit site before or after 1939, but admitted his running a saw mill in the suit site and the existence of a two storied building as of now. He further admitted that in spite of the exchange of notices in 1940, they continued to receive the annual rent of Rs. 50/- and he does not know whether the market rate of the suit site in 1908 was hardly 25 paise or 50 paise per square yard, though he denied that the value of the suit site was about Rs. 400/- at the time of Ex.A.1. He could not say whether Ex.A.1 was drafted by Durvasula Srirama Sastry, Advocate and thus, it is clear that P.W.1 obviously had no personal knowledge of the circumstances under which Ex.A.1 was entered into and is not in a position to dispute its contents. The 3rd defendant stated that some Kancherulu were residing in the suit site and were evicted, when they fell in arrears, by the temple, which gave possession of the suit site to his grandfather. He also asserted that no other person was prepared to pay Rs. 400/- and to pay Rs. 50/- per annum as 'kattubadi' in 1908 on which the hereditary trustees gave the suit site to his grandfather. However, he admitted that he has no personal knowledge under what circumstances Ex.A.1 came into existence and that he could not say whether any other person offered to pay such amount to the temple, and he was not born by that time. Thus, he also had no personal knowledge and under the circumstances, the Court has to necessarily fall back upon the contents of Ex.A.1.
13. Ex.A.1 was executed by Garuda Venkata Jagannadham and his adopted son Sanyasayya as trustees of the plaintiff temple in favour of Garuda Ramayya on 8-4-1908. The document recited that the property was under the ownership and possession of the plaintiff temple and that earlier Kancherulu took the site on rent and were residing therein. The property was stated to be vacant without fetching any income. It was further stated that repairs to Indradyumna Temple were found absolutely essential and the plaintiff temple had no money to its credit. Consequently, on condition of Garuda Ramayya paying Rs. 400/- and a sum of Rs. 50/- per annum towards 'cistu' or 'kattubadi', "Saswatha kadapa" was obtained for "Saswatha Koulu". It was recited that the site was delivered possession on receipt of cash of Rs. 400/- and due date for payment of Rs. 50/- every year was recited, payable in default with interest. The lessee was given the rights of absolute enjoyment including making any constructions. The document did not reserve any right of cancellation or resumption on any ground. Ex.A.2 property register also recited about the permanent lease and Exs.A.3 and A.4 also referred to the said lease, however claiming it to be for 99 years. Ex.A.6 town survey register mentions Ramayya as the tenant of the plaintiff and in Ex.B.1 notice dated 24-7-1940 issued on the instructions of P.W.1, the permanent lease was admitted, but its validity was denied. So was Ex.B.l3 notice dated 27-9-1982. In Ex.A.15 reply, the 1st defendant admitted the permanent lease and defended it. Under Ex.B.2 dated 23-6-1948 P.W.1 demanded the 1st defendant about the payment of 'kattubadi'. Exs.B.3 to B.15 were only to show the possession and enjoyment in pursuance of the lease.
14. Thus, the documents on record throw no light on the truth or otherwise of the recitals in Ex.A.1 and at this distance of time from 1908 the said recitals have to be acted upon as ex facie true in the total absence of any circumstances creating any doubt about their genuineness, authentically and correctness. If so, though the plaintiff owned Ac.65-00 of dry land and Ac. 12-00 of wet land at Waltair and Mamidivalasa Villages, still the plaintiff had no money at its credit by the time of Ex.A.1 and had an urgent necessity to carry out repairs to Indrayumna Temple which was a part of the plaintiff temple and the maintenance and upkeep of which is indispensable for the plaintiff temple to successfully conduct the annual Rathayatra festival for 10 days as was being done since time immemorial. While Rathayatra festival is performed in Ashadamasam some time in June, Ex.A.1 was entered into in April, which may be indicative of the necessity to get the Indradyumna Temple repaired before the fast approaching Rathayatra festival, for which funds were needed, but were not available. Apart from the undenied suggestion that the suit site was not worth more than 25 paise to 50 paise per square yard in 1908, the value of sums of Rs. 400/- and Rs. 50/- as in 1908 and not as in 2006 has to be kept in view in appreciating the justifiability or otherwise of the transaction. Though the plaintiff had other lands, there is no evidence of probable income they were fetching at that time and P.W.1 spoke of another lease of a site fetching an annual rent of Re. 1/-. P.W.1 did not specify what rents the agricultural lands were fetching and admitted that the blacksmiths in possession of the said site defaulted in payment of rent and were evicted. In the absence of any material, it cannot be a matter of surmise or conjecture as to what income the other properties were fetching to the temple and P.W.1 did not even state as to what 'cist' they were collecting from the tenants prior to 1981.
15. Ex.A.2 property register prepared in 1948 mentioned the income in cash of the lands at Rs. 746-25 ps. (300 + 446-25). It also mentioned rents of Rs. 1,369-50 ps. per annum to be due from 14 persons apparently for sites in municipal area, apart from the permanent leases including Ex.A.1 fetching Rs. 51-50 ps. The total income per annum in 1948 as per pages 5 and 6 of Ex.A.2, therefore, is Rs. 2,167-25 ps. The entries at page 14 of Ex.A.2 show the annual expenditure at Rs. 2,306/-. Ex.A.2 prepared and authenticated by the hereditary trustee (P.W.1) and the Inspector, Hindu Religious Endowments in 1948 obviously without any eye on any litigation, can be taken as showing the real state of affairs and if so, it is obvious that the income of the plaintiff temple was patently less than its requirements of expenditure and what was obtaining in 1948 can be safely presumed to be the probable financial position of the temple even in 1908, the temple having the same properties to fetch any income and the same responsibilities to discharge. Ex.A.2 also shows at page 12 that the only amounts lying to the credit of the temple were Rs. 200/- in a bank current account and Rs. 150/- in national savings certificates and the position could not have been better in 1908. As such the recital in Ex.A.1 that the temple had no funds to effect any repairs to Indrayumna Temple, has to be considered as representing the correct state of affairs and if so, the repairs to Indrayumna Temple which is an integral part of the plaintiff temple and the maintenance and upkeep of which is absolutely essential for the conduct of the basic and important religious festival, was an imperative legal necessity for the plaintiff temple and its hereditary trustees at that time. If the hereditary trustees, therefore, granted a permanent lease of the suit site for a substantial consideration in those times of Rs. 400/- in cash and Rs. 50/- annual rent thereafter, the transaction cannot be considered as unjustified or unreasonable. Though there is no material before the Court to show whether any others had offered or would have offered any higher sums, it cannot be a matter of conjecture and after a lapse of about 98 years, neither the existence of legal necessity nor the adequacy of consideration can be doubted on any hypothetical or imaginary considerations. The only stipulation in Ex.A.1 which bound the plaintiff temple for ever which may be considered adverse to its interests was fixation of an invariable rent at Rs. 50/-perannum forever.
16. The legal position needs to be examined in the light of this factual situation.
17. Idol worship not prevalent in the Vedic age is a post-Buddhism phenomenon, which gradually led to establishment of temples and bequeathing properties to them. Idol is regarded as a juristic person and religious endowments became a part of Hindu law with temples owning vast extents of lands and other properties. Administrative control or management of temples under Hindu Kings and Muslim Rulers were broadly in tune with the personal law of Hindus and after the advert of the British rule, the Madras Endowments and Escheats Regulation 1817, VII of 1817 was the first legislative measure in the Presidency of Madras, whereby the general superintendence of all religious and charitable endowments was vested in the Board of Revenue. This regulation gave way to the religious Endowments Act, XX of 1863 and this was followed by the Madras Hindu Religious Endowments Act, I of 1925, the Madras Hindu Religious Endowments Act, II of 1927 and Madras Hindu Religious and Charitable Endowments Act, XIX of 1951. After formation of the State of Andhra Pradesh, the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, XVII of 1966 was enacted and in its place the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987, XXX of 1987 came into force from 28-5-1987. By the time the subject permanent lease was granted in 1908, the Religious Endowments Act 1863, XX of 1863 was in force. The Madras Regulation VII of 1817 made for due appropriation of the rents and produce of lands granted for the support of Hindu temples, etc, by providing for general superintendence of such endowments by the Board of Revenue or the Religious Endowments Act XX of 1863 made to divest the Government of the management of Religious Endowments and providing for appointment of committees did not make any provisions governing alienation of endowments and consequently, one has to fall back upon the Hindu personal law as interpreted and applied by judicial precedents in considering the validity or otherwise of an alienation made during that period. The restrictions on any lease of any immovable property belonging to any mutt or temple exceeding the specified periods or otherwise came to be imposed only since the introduction of Section 76 in the Madras Hindu Religious Endowments Act II of 1927. But the said Act or the subsequent legislations were not shown to have been construed as invalidating or otherwise prejudicially affecting any anterior leases which are otherwise valid.
18. Corning to the decisional law, in Sreemuth Devasikamoney Pandarasannadhi alias Nataraja Desikar v. K.P.L.S. Palaniappa Chettiar and Anr. ILR Vol. XXXIV Mad. Series, Page 535, also the question raised was whether the permanent lease by the trustee of a temple of a building site belonging to the temple for a premium was invalid and the problem was whether alienation of temple property on a permanent lease at an unvarying rent or a fixed premium is sustainable because it is a house site and it was not producing any income before the date of alienation. Following the decisions in Maharanee Shibessouree Debia v. Mothooranath Acharjo (1869) 13 M.I.A. 270, Mayandi Chettiar v. Chokkalingam Pillai (1904) I.L.R. 27 Mad. 291 and Abiram Goswami v. Shyama Charan Nandi (1909) ILR 36 Cal. 1003 at P. 1013 it was held that the creation of a new and fixed rent for all time, though adequate at the time in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time, would be a breach of duty in the trustee unless there were special circumstances of necessity to justify it. It was pointed out that building sites of all lands are particularly susceptible of a continuous rise in value where the locality increases in prosperity or there are increased facilities of communication or there is an increase in population. It was made clear that there is no text of Hindu Law that absolutely prohibits the alienation of the corpus of the temple property where there are sufficient circumstances of necessity requiring it and what would amount to such necessity may be a question not easy of solution in the circumstances of each case. But if a proper necessity is made out, the alienation ought to be upheld. Likening the power of the shebait of an idol to that of the manager of an infant heir, such powers were held to undoubtedly extend to the alienation of the corpus and the quotation from Hanooman Persuad's case (1856) 6 M.I.A. 393, was held to employ the most precise language. It was also pointed out that the alienation may be justifiable on the ground of a bona fide inquiry by the purchaser and a representation by the alienor that the sale was made for the purpose of the repair of the temple. It was pointed out that in a case of honest inquiry by the alienee the real existence of an alleged sufficient and reasonable credited necessity is not a condition precedent to the validity of his charge and that under such circumstances he is not bound to see to the application of the money. It was held that the requirements of daily worship, of buildings suitable for the carrying on of such worship and even of the essential festivals intended to cultivate the religious emotions of the section of the public for whose benefit the temple is dedicated may afford grounds for the alienations of part of the corpus of the property of the temple. That such alienations ought only to be resorted to as extreme measures in the absence of other reasonable means of providing for the needs of the temple may well be accepted as the canon of judgment in regard to the validity of particular alienations.
19. In Muthusamier v. Methanithi Swamiyar AIR 1916 Mad. 332 it was held that the corpus of the Mutt property is inalienable except in special circumstances, and it seems difficult to withhold from the Matadhipathi the right to make for his own life or rather for the period during which he occupies the position as head of the Mutt, a lease of a portion of the property for any rent however small which he may deem sufficient. It was further held that an alienation by the head of a religious foundation is not necessarily utterly void and of no effect and a lease, though beyond the power of the lessor, could not be avoided during his own lifetime but is voidable by the lessor's successors.
20. In Perumal Gramani v. Mahamad Kasim Sahib AIR 1916 Mad. 502 it was pointed out that the general rule undoubtedly is that a permanent lease of religious trust property is beyond the powers of the trustee and whether the permanent lease was to the benefit of Darga is a question of fact.
21. In Bawa Magniram Sitar am v. Kasturbhai Manibhai L.R. Vol. XLIX 49 Indian Appeals p. 54 the Privy Council followed Chockalingam Pillai v. Mayandi Chettiar I.L.R. 19 M. 485 wherein it was held that although the manager for the time being had no power to make a permanent alienation of temple property in the absence of proved necessity for the alienation, yet the long lapse of time between the alienation and the challenge of its validity is a circumstance which enables the Court to assume that the original grant was made in exercise of that extended power, and held that:
If in fact the grant was made by a person who possessed the limited power of dealing under which a shebait holds lands devoted to the purposes of religious worship, yet none the less there is attached to the office in special and unusual circumstances, the power of making a wider grant than one which enures only for his life. 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 always 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.
22. In Sree Sree Lakshmi Narayan Jiu Thakur v. Jagadish Chandra Sur AIR 1938 Cal. 541 the evidentiary value ofrecitals in ancient documents was considered and the view of the Privy Council in Banga Chandra Dhur Biswas v. Jagat Kishore 43 IA 249 was followed which is as under:
As the time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes greater importance and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representation, and if the circumstances are such as to justify a reasonable belief that an inquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise, would result in deciding that a title becomes weaker as it grows older, so that a transaction perfectly honest and legitimate when it took place, would ultimately be incapable of justification merely owing to the passage of time.
23. In Sri Thakurji Ramji v. Mathura Prasad AIR 1941 Pat. 354 in a case where the parties to the transactions as also the attesting witnesses to the document are all dead, it was held that some value had to be attached to the recitals in the document and the decision of the Privy Council in Banga Chadra Dhur's case (supra), was reiterated. It was also pointed out that the matter of justifying necessity should be approached not from an absolute standard of necessity but from the point of view of what considerations would weigh in the mind of a prudent manager. It was held that:
"Necessity" and "benefit of the estate" are general and elastic terms. To a religious institution like a math its prestige and influence are of vital importance. Preservation of its prestige and influence is no less necessary than preservation of its property. The evidence in this case shows that an elephant was being maintained in the Asthal since the time of Mahanth Bhagwan Das. If an elephant was necessary for use during festival occasions, Mahanth Damodar Das was the best person to judge whether, in the circumstances, it would be prudent for him to purchase one by borrowing."
It was also pointed out that the bona fide lender who advances money cannot be affected by the precedent mismanagement of the estate. After reference to the case law, it was pointed out that:
An alienation of debuttar property by a mahanth, be it a permanent lease or sale, if not supported by necessity, is valid during the tenure of his office, and consequently possession of the alienee does not become adverse till after the death of the alienating mahanth.
24. In G.V. Kalmath v. Vishnu Deo it was held that:
A wahivatdar or a manager has not got an unqualified power of alienation in respect of debutter properties. His powers in that regard are restricted. He can alienate debutter properties only for legal necessity or for the benefit of the deity. The expressions legal necessity' and 'the benefit of the deity' have been the subject-matter of decisions of Courts in India and of the Privy Council for over one hundred years. The powers of a manager or wahivatdar with regard to alienation of debuttar property are analogous to the powers of a guardian in relation to the estate of a minor. A permanent lease under which the rent payable is a fixed one and not subject to variation at the instance of the lessor, is also considered as an alienation which is subject to the restriction that it cannot be created unless there is legal necessity or it is established that it is for the benefit of the deity.
It was pointed out that the lender, unless he is shown to have acted mala fide, will not be affected though it may be shown that with better management the estate might have been kept free from debt. It was also held that unless it is shown that the permanent lease was entered into for legal necessity or benefit of the deity, the lease cannot be binding on the deity and the burden of establishing the circumstances justifying an alienation of debutter property is on the alienee.
25. Even under the Indian Trusts Act, 1882, the precedents recorded the same principle that a trustee cannot grant a permanent lease at fixed rent unless there is necessity to grant and such a lease is not void and illegal, but is only voidable.
26. From the above precedents, the following principles emerge:
1. The powers of the trustee of a temple are analogous to those of the manager of an infant heir.
2. The grant of permanent lease of the property of a temple or a religious endowment is generally beyond the powers of the trustee and is prima facie in excess of his powers.
3. A permanent lease is not absolutely invalid under all the circumstances.
4. There may be sufficient special circumstances of necessity or benefit to the deity or institution justifying such alienation.
5. What would amount to such necessity or benefit to the deity is a question of fact on the circumstances of each case.
6. An alienation beyond the powers of the trustees is not void an-initio and cannot be avoided during his lifetime, but may be voidable by his successors.
7. When the grant was made for necessity in special and unusual circumstances, it may be valid beyond the life of the grantor.
8. The Court presumes that the grant was made for necessity so as to be valid beyond the life of the grantor when it comes in question a long time after the grant.
9. When all the original parties to the transaction and all those who could have given evidence are unavailable due to death or old age, the recitals in ancient document consistent with the probabilities and circumstances of the case will be sufficient evidence.
10. The burden of establishing the circumstances justifying an alienation is on the alienee.
27. However, these principles are subject to any limitations or restrictions imposed by the relevant statutes or statutory rules in force from time to time.
28. The provisions of Chapter V of the Transfer of Property Act, 1882 on leases of immovable property are in no manner infringed by the permanent lease in question and Section 105 refers to a lease in perpetuity and there was no determination of the lease in any manner. The provisions of Chapter X of A.P. Act No. 30 of 1987 dealing with alienation of any immovable property and resumption of Inam lands, also have no bearing and Section 82 refers to lease of agricultural lands and not a lease of the present nature. Section 80 on alienation of immovable property does not cover a lease. Section 75 refers to any lease (the words "for a term exceeding six years" were omitted in Section 75 by Section 5 of the Amendment Act No. 27 of 2002) of an Inam land (the subject site being not shown to be capable of being described as Inam land) being null and void, if effected without the prior sanction of the Government. But the Act is prospective and not retrospective. Section 155 providing for repeals and savings or Section 160 giving overriding effect to the Act do not affect the permanent lease in question for the same reason and no authority is brought to notice to show that any provision of the prospective legislation has an adverse impact on any anterior transaction which was legally and validly entered into. The provisions of A.P. Act No. 17 of 1966, which are more or less similar, more particularly Sections 70 and 74 referred to in the grounds of appeal, are also to the same effect. All the endowments legislations from 1927 to 1987, thus, do not appear to stand in the way of the continued legality of permanent lease in question nor does the permanent lease appear to be liable to be regularized under such legislations to continue to be valid.
29. Thus, the Madras Regulation VII of 1817 and Religious Endowments Act XX of 1863 made no provision governing this aspect and the subsequent legislations upto and including A.P. Act XXX of 1987 did not contain any specific provision nullifying or interfering with any anterior leases, which are otherwise valid. The Hindu personal law, therefore, to be applied to the case on hand as elaboratcd above, does not, in any manner, appear to affect the validity and binding nature of Ex.A. 1 lease deed. While the question of burden of proof loses its relevance once the evidence of both parties is before the Court unless evenly balanced, even assuming that the burden is on the alienee to establish justifying circumstances, such circumstances are evident from the recitals in Ex.A.1 itself uncontroverted by any other evidence or circumstances. The recitals in Ex.A.1 are sufficient at this distance of time to assume that the grant was made for necessity so as to be valid beyond the life of the grantor, in the absence of any scope for testing the truth and correctness of the recitals in any manner, as otherwise, it will be asking the legal representatives of the original lessee to prove the impossible. The probabilities arising out of Ex.A.2 coupled with the recitals in Ex.A.1 can, therefore, be accepted as probablising the justification for the alienation made for the inevitable necessity of getting Indradyumna Temple repaired for the conduct of essential religious festivals associated with the temple, for adequate and reasonable valuable consideration. Though a fixed rent for all time is not ordinarily justified, the special circumstances do not make the transaction invalid solely on that ground and hence, it has to be concluded that the permanent lease is not invalid.
Point No. 2:
30. The 3rd defendant as D.W.1 stated that they paid 'Kattubadi" to the temple till 1970 and that they could not pay the same since 1971 as the temple authorities were not receiving the same. His claims about the possession and enjoyment of the property were not in any manner contrary to what was conveyed under Ex.A.1 and he further claimed that even after 1970 they sent the rent to the suit property by money orders and cheques every year, which the temple authorities refused. He claimed that till his evidence they were sending the rent like that and he even further claimed that when the temple authorities refused to receive, they deposited the money in Punjab National Bank in the name of his father and later in the name of the 5th defendant and informed the same to the temple authorities. He further claimed that the said amount is still in the said account, though he does not remember the account number. P.W.1, the present hereditary trustee stated that since Ex.A.1 upto 1982 they were receiving Rs. 50/- per annum for the suit site and nothing was suggested to P.W.1 to the effect that the possession of the lessee and his successors was in any manner adverse to what was conveyed under Ex.A.1 at any time. The trial Court noted that it was conceded that the property is that of the endowment and the plaintiff and though the written statement attempted to claim the transaction to be a permanent grant and not a permanent lease, the recitals in Ex.A.1, already extracted, make it clear that it was only a permanent lease. The possession of the lessee and his heirs since 1908 was, thus, never adverse to the title and ownership of the plaintiff and whatever constructions were made and in whatever manner the poperty was possessed and enjoyed were in tune with what was permitted under Ex.A.1 in pursuance of the grant of permanent lease. Any rights under the permanent lease were acquired under Ex.A.1 and not by prescription. The decisions referred to by the trial Court about adverse possession, even of a limited interest in the property, have no application when the lessee or his heirs never attempted to claim denial or ouster of the plaintiff's title or ownership and were always claiming the right to possession and enjoyment only under the plaintiff. The refusal of the plaintiff's authorities to receive the rents for whatever period does not make any difference. It may also be noted that under Section 143 of A.P. Act No. 30 of 1987 and similar provisions in pari materia in the earlier legislations on the subject like Section 103 of A.P. Act No. 17 of 1966, any property of charitable or religious institution or endowment will not vest under any law of limitation in any person if it did not vest before 30-9-1951 in the Andhra Area of the State of Andhra Pradesh and when the defendants admittedly paid 'kattubadi' to the plaintiff upto 1970 and did not claim any perfection of title by adverse possession prior to 30-9-1951, there was no question of the plaintiff's title to the property being lost by law of limitation and as such, the finding of the trial Court that the lessee or his heirs acquired title to the suit property by prescription has to be set aside.
Point No. 3:
31. Ex.A.1 was on 8-4-1908 and P.W.1 stated that his grandfather died in 1915, his father died on 4-8-1936 and that he completed his 18th year by 29-10-1939. The suit was filed only in 1984 and in the meanwhile neither P.W.1 nor his mother who was claimed to be his guardian during his minority nor the Executive Officer who was claimed to have assumed charge on 2-2-1972, challenged the validity of Ex.A.1 upto 1-2-1984 the date of filing of the suit. The Executive Officer himself did not enter the witness box and no documentary evidence has been produced to indicate his taking charge on 2-2-1972 or any other date. P.W.1 did not refer to the same in his evidence.
32. In Sarangadeva v. Ramaswami AIR 1966 SC 1603 the Supreme Court was considering a case where a perpetual lease was granted at a fixed rent without alleging or proving any legal necessity and observed that Mathadhipathi had power to grant a lease which could enure for his lifetime and noted that prior to insertion of Article 134-B of Indian Limitation Act, 1908 by Act I of 1929, the suit for recovery of the lands would have been governed by Article 144. The Supreme Court made it clear that limitation runs from the time when the possession of the defendant becomes adverse to the plaintiff and runs equally even if there is neither a de jure nor a de facto Mathadhipathi. The Supreme Court held that the time commenced to run on the death of Mathadhipathi who granted the lease and even the absence of a legally appointed Mathadipathi did not prevent the running of time under Article 144.
33. The scope of Article 134-B of Indian Limitation Act, 1908 was considered by a Division Bench in C. V. Purushotham v. C.J. Mutt AIR 1975 AP 153. It was noted that under law of endowments as settled by the decisions of the Privy Council and the Supreme Court, alienation of endowed property by a Mathadhipathi is not binding on the Mutt unless it is supported by necessity, and a permanent lease is considered to be of the same nature as an alienation and it was observed that after the death, resignation or removal of the Mathadipathi, the succeeding Mathadhipathi is entitled to sue for a declaration that the alienation is not binding on the institution, which is a right under the law governing the endowments and existed under both the Limitation Acts 1908 and 1963. Consequently, it followed in that case that the period of limitation prescribed by Article 134-B of Indian Limitation Act, 1908 expired before the commencement of Limitation Act, 1963 as the suit had to be filed within 12 years from the date of death, resignation or removal of the transferor and as the transferor died on 13-9-1906 and the suit was filed in O.S.No. 81 of 1965. It was further made clear that Section 31 of the Limitation Act, 1963 provides that nothing in the new Act shall enable any suit to be instituted for which the period of limitation prescribed by Indian Limitation Act 1908 expired before the commencement of the new Act. Hence, Article 96 of the new Limitation Act, 1963 was held to have no application and the suit was held barred by limitation.
34. The evidence of P.W.1 makes it clear that the original transferors died in 1915 and 1936 respectively and P.W.1 was a major by 1939. Either under Article 144 of Indian Limitation Act, 1908 in force in 1915 or under Article 134-B of the Indian Limitation Act, 1908 inserted by Act I of 1929 the limitation to avoid the permanent lease commenced to run on the death of the transferors respectively and the period of 12 years should be computed from 1915 and 1936 respectively. If so, under either provision, the suit was barred by limitation under the Indian Limitation Act 1908 itself which was in force at that time and by virtue of Section 31 of the new Limitation Act, 1963 no recourse can be had to the benefit of Article 96 thereof to claim any extended period of limitation. In any view, the inaction till the suit even after P.W.1 attained majority in 1939 reinforces the bar of limitation and the Executive Officer taking charge on 2-2-1972 and the suit being filed on 1-2-1984 within 12 years makes no difference. An Executive Officer cannot be called a successor to hereditary trustee : Vide M. Venkateswarlu v. Joint Commissioner 1973 (II) An. WR 280 and any fresh period of limitation cannot be computed by virtue of his appointment or assumption of charge reviving a dead cause, as held in C. V. Purushotham 's case (supra). Hence, it has to be concluded that the suit is barred by time.
35. Incidentally, Section 10 of the Limitation Act, 1963, which provided that suits against trustees and their representatives for following the property in their hands or the proceeds thereof or for an account of such property or proceeds shall not be barred by any length of time, was refenred to as keeping alive the right of the plaintiff to sue. But this suit is neither against the trustees nor their legal representatives and even if it were against the assigns of the trustees, Section 10 itself excludes assigns for valuable consideration from its scope. A reference to Page 752 of volume 32 of AIR Manual Civil and Criminal, 5th edition 1989, Note 26 is suffice to conclude that a suit like the present one is subject to the ordinary bar of limitation and the plea that so long as the permanent lease continues to be operative, there can be no limitation to nullify the same, is not tenable.
Point No. 4:
36. The plaintiff pleaded in the grounds of appeal that the inherent jurisdiction of the trial Court should have been exercised to revise the rent to meet the ends of justice. But, contractual obligation of the parties cannot be interfered within exercise of any inherent jurisdiction so long as such obligations are legal and enforceable. However, when enquired on the fixed rent under Ex.A.1 being not in any manner commensurate with the present day realities, Sri K.V. Subrahmanya Narusu, learned Counsel for the respondents on instructions from his clients, has voluntarily offered to enhance the annual rent to Rs. 3,000/-prospectively from this year. The voluntary undertaking by the learned Counsel on instructions from the contesting respondents can be accepted and while placing the appreciation of the Court on record for the gesture by the learned Counsel for the contesting respondents in spite of not being obliged to make any such concessions under law, the fixed rent payable to the plaintiff can be accordingly recorded to be revised, the same being not in exercise of any inherent powers, but because of the jurisdiction conferred by consent not prohibited by any principle or provision of law. While accepting the offer, the contesting respondents should have no objection to make payment of the offered rent executable in case of default by them or any persons claiming through them later. The plaintiff will, therefore, be given the right to enforce the liability to pay the enhanced rent as offered as if it were a money decree. It is the contention of the defendants that out of defendants 2 to 9 brought on record as the legal representatives of the 1st defendant, the subject property fell to the share of the deceased 5th defendant and defendants 10 to 13 were brought on record as the legal representatives of the deceased 5th defendant. As the rights under the permanent lease are, thus, now enjoyed by defendants 10 to 13, they have to be made liable to pay the fixed rent.
37. The offer to pay Rs. 3,000/- per annum as fixed rent is, in fact, six times more than the mesne profits claimed by the plaintiff in the suit at Rs. 500/- per annum from 2-2-1982 and it can even be considered as taking care of the inflationary trends in the meanwhile as on today.
38. Thus, the dismissal of the suit with costs by the trial Court has to be maintained, while the finding that the lessee or his legal representatives acquired title to the suit property by prescription has to be set aside. The parties can be directed to bear their own costs in the appeal.
39. In the result,-
(a) The judgment and decree in O.S. No. 84 of 1984 on the file of the I Additional Subordinate Judge's Court, Visakhapatnam, dated 13-11-1991 are confirmed except to the extent of setting aside the finding of the trial Court that the lessee or his legal representatives acquired title to the suit property by prescription;
(b) Defendants 10 to 13 as legal representatives of the deceased 5th defendant and any persons claiming through them later shall pay Rs. 3,000/- (Rupees three thousand only) per annum towards fixed rent for the suit property to the plaintiff from 2006 before 3lst day of December each year;
(c) In default of such payment, the plaintiff is entitled to execute the decree for payment of such fixed rent; and
(d) The appeal is ordered accordingly without costs.