Dr. Natesan (Died) vs Pandari Narayanan (Died) on 14 August, 2003

[Cites 21, Cited by 4]

Madras High Court

Dr. Natesan (Died) vs Pandari Narayanan (Died) on 14 August, 2003

Defendants are the appellants. The suit for a declaration that the plaint schedule properties belong to the plaintiffs as service inam lands and for a direction to the defendants to put the plaintiffs in possession of the same was decreed as prayed for by the learned Principal Subordinate Judge and the appeal is against this judgment and decree.

2. The brief facts of the case are stated below. The parties are described as per their rankings before the trial court.

3. The plaint schedule land bearing Survey No.403 of Idaripatti Village, Melur Taluk, Madurai District of an extent of 318.28 acres was granted in inam to the ancestors of the plaintiffs for rendering Pandari service in Sri Kallalagar Temple, Alagarkoil, Melur Taluk, Madurai District. The said inam consists of supplying flowers and garlands of flowers for the worship in Sri Kallalagar Temple. According to the plaintiffs, the land is a minor inam granted for religious service and as such, inalienable and they are still rendering the service in the said temple. While so, it is stated that one of the ancestors of the plaintiffs, Pandari Sundararajayyan, executed a Cowle (Lease) Deed in favour of one Ramasamy Iyer on 24.1.1898 in and by which he stipulated that the lessee should pay the lease amount as mentioned in the said document and that the said lessee shall have no right of alienation of the land etc. The said Ramasamy Iyer released his rights in favour of one Chidambara Iyer. It is stated that there arose a suit between the first plaintiff and the first defendant in O.S. No.49 of 1944 in which a compromise was entered into, whereby it was agreed that the first defendant shall hold the land as permanent lessee and a decree was passed in terms of the said compromise dated 24.11.1944. The said compromise, according to the plaint iffs, is void since the subject matter was an inalienable service inam land. It is stated that on the coming into force of the Tamil Nadu Minor Inams ( Abolition and Conversion into Ryotwari) Act, 1963 (Act XXX of 1963), the Settlement Tahsildar, Minor Inams, after holding an enquiry under Section 11(2) of the said Act, by an order dated 21.11.1969, granted patta in favour of the plaintiffs under Section 8(2)(ii) read with Section 8(5) of the said Act. The said order of grant of patta was confirmed in C.M.A. No.299 of 1970 dated 11.3.1975. After coming to learn that the first defendant had illegally alienated portions of the said property in favour of defendants 2 to 5, contending that those alienations are unsustainable in law, not binding on any one, void and unjust, the plaintiffs requested for possession of the property and the said request having been denied, the above suit came to be filed.

4. The case of the defendants is one of denial of the nature of the inam. According to them, the property is not an inalienable religious service inam and as per the registered deed of cowle, the defendants have acquired a permanent right of lease. They have pleaded that the first plaintiff herein, as the head of the family and the father of the first defendant, entered into a compromise in the hotly contested suit, O.S. No.49 of 1944, by which the claim of the defendants in the suit as permanent tenant with heritable and transferable rights was recognised. According to the defendants, the compromise was acted upon and therefore, the plaintiffs are now estopped from filing the present suit and the suit is barred by the principle of res judicata. According to them, the grant of patta under the Tamil Nadu Act XXX of 1963 was only subject to the right of p ossession and enjoyment, and the grant of ryotwari patta would not enlarge the rights of the plaintiffs nor it can take away the pre-existing rights of the defendants that had accrued and consequently, the defendants had the right to alienate, and the alienations are valid and binding. For the above reasons, they have sought for dismissal of the suit.

5. The learned Principal Subordinate Judge, in the light of the above pleadings, framed the following issues :-

        (1)     Whether the suit is barred by limitation?
        (2)     Whether the court fee paid is correct?
        (3)     Whether the  plaintiffs  are  estopped  from  questioning  the
rights of the defendants over the suit property?
        (4)     Whether the suit is barred by the principle of res judicata?
        (5)     Whether the plaintiffs have any right over the suit property?
        (6)     Whether   the   plaintiffs   are   entitled  for  recovery  of
possession?
        (7)     What are the rights that accrue to the plaintiffs?
                Additional Issue  :    Whether  the  suit  is   affected   for
misjoinder of parties and on erroneous pleadings?

6. The learned Principal Subordinate Judge, after considering the documentary and oral evidence, found on Issue Nos.3, 4 and 5 that the plaintiffs have title to the suit property, that there is no estoppel against the plaintiffs and that the decree of compromise would not be a res judicata against the plaintiffs and thus answered the issues in favour of the plaintiffs. On Issue Nos.1 and 2, the trial court found that the suit is not barred by limitation and that the court fee paid is proper. On Issue No.6, the trial court held that the plaintiffs are entitled to seek for recovery of possession. The additional issue was also decided in favour of the plaintiffs. Ultimately, the learned Principal Subordinate Judge granted the decree as prayed for.

7. Mr. S.V. Jayaraman, learned senior counsel, appearing on behalf of the appellants made the following submissions :

i) The defendants were granted a permanent lease as per the cowle deed dated 24.5.1898 and they are in possession and enjoyment of the same.

ii) The grant of patta to the plaintiffs is in recognitin of their pre-existing right and the said grant did not take away or extinguish the relationship of landlord and tenant, lessor and lessee. The said relationship continues and therefore, the plaintiffs are not entitled to recover possession of the property.

iii) The plaintiffs' ancestors were granted the suit propertin in inam for rendering service to the temple and therefore, the grant of patta is not creation of a new right, but is only in recognition of a pre-existing right and the grant of patta does not take away or alter the relationship of landlord and tenant.

iv) The compromise decree passed in O.S. No.49 of 1944 is binding on the plaintiffs and they are estopped from questioning the same.

Learned senior counsel, therefore, prays to set aside the judgment and decree of the court below.

8. Mr. S. Desikan, learned counsel appearing on behalf of the respondents/plaintiffs submitted that the inams granted to the ancestors of the plaintiffs were service inams for rendering service to the temple and that there was no controversy on their status and the inam granted to the plaintiffs. According to him, the predecessors of the plaintiffs were granted patta under Section 8(2)(ii) and they did not exercise any option under Section 21(3) of Act XXX of 1963 and they continued to hold the land as service holders. He submitted that the permanent lease said to have been granted to the plaintiffs is void, since the subject matter, viz. land is an inalienable service inam. Learned counsel referred to Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 which empowers the resumption of the grant of inam made even prior to the coming into force of this Act since according to him, any such alienation of a service inam will be violating the public policy inasmuch as the service would not be performed. He further submitted that the compromise entered into in O.S. No.49 of 1944 is invalid and non-est in law, besides the said compromise not having being registered so as to convey any transfer. According to the learned counsel, the question relates to the service inam and is incapable of valuation and hence, the court fee paid is correct. He further submitted that there is no res judicata since the consent decree proceeds on a mistaken notion that service holders' inam land could be transferred. According to him, there can be no estoppel against a statute and the claim of the defendants is opposed to public policy and would defeat the purpose for which the grant was made. He therefore prays for dismissal of the appeal.

9. We have heard the counsel and considered the matte carefully.

10. The main questions that arise for our consideration are :-

i) What is the nature of the inam granted to the plaintiffs' ancestors ?

        ii)     The jurisdiction of the civil court.
        iii)    Whether  the  plaintiffs are estopped and their suit barred by
the principle of res judicata ?

        Nature of the Inam

11. Both the parties proceeded that the predecessors of the plaintiffs were granted inam of the suit lands for their services. It is pleaded in paragraphs 4, 5 and 6 of the plaint that the lands were granted in inam for rendering Pandari service in Sri Kallalagar Temple, Alagarkoil which consisted of supplying of flowers and garlands of flowers for the worship in Sri Kallalagar Temple and that the said inam is a minor inam granted for religious service and as such inalienable. The plaintiffs' prayer is also to declare that the schedule mentioned property belongs to the plaintiffs as service inam lands. The defendants, in their written statement, have conceded that the lands are religious service inam and according to them, they are inalienable. In the coule deed, Ex.B.1, entered into between Ramasamy Iyer and others and Pandari Sundarajayyan dated 24.5.1898, the predecessors of the plaintiffs were described as Inamdars and the land is described as "njt!;jhdk;

jpUkhiyf;fl;o khzpgg;g[";ir", which means that the dry lands were given as inam for performing the service of preparing garlands to the Devasthanam. The deed says that the plaintiffs were given this inam by the Kings of Karnataka. It is stated in the deed that the plaintiffs were enjoying the lands as inamdars by paying kists etc. While considering the nature of the inam, the Settlement Tahsildar, in his order, Ex.A.1 dated 21.11.1969, found that the temple had 5 0 years of enjoyment in 1863 and as per the Inam Register for T.D. No.1082, Ex.B.1 in that order, it is seen that the grant of inam is for the service of Thirumalaikatti in the Pagoda of Sundararaja Perumal at Alagarkoil. Columns 15 to 18 of the Register show that Ponnu Bandari was the office bearer in 1863. He was appointed by the Manager of the temple in 1863 for the performance of the services. The grant was confirmed by the office of 'Bhandari' and noted as 'Permanent' in Column 10 to Ex.B.1. If the inam were to have been made to an individual burden with service, it would have been noted as 'hereditary in Column 10. The office bearer Ponnu Pandari was appointed by the Manager of the temple. Under Section 8(2)(ii) of the Act, the institution or the person rendering the service is entitled to patta. According to the officer, the plaintiffs/claimants are the persons rendering the service and therefore, they are entitled to patta subject to the provisions of Section 21. The trial court found that the plaintiffs are service inamdars and that D.W.1 had admitted that the suit lands are temple Maniba Service lands given for rendering the service of providing flowers and garlands to the Alagarkoil. Thus, from the document, viz. the coule deed, the findings of the Settlement Tahsildar and the evidence, it is seen that the suit lands are service inam lands. This is in contra distinction with personal inams, inams granted to persons which are hereditable and alienable. The parties have proceeded on the admitted stand that the lands are service inams and that the plaintiffs are service holders for the purpose of rendering service to the temple.

12. A Constitution Bench of the Supreme Court, in T.T. Lakshmana vs. State of Madras [A.I.R. 1968 S.C. 1489], has held that there is a well recognised distinction between grant of land burdened with a condition of service and the grand of land as remuneration for an office. Section 44-B of the Madras Hindu Religious Endowments Act II of 1927 (Present Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959) does not apply to a personal inam burdened with a condition of service. Their lordships held that it applies to an inam granted to an office holder as remuneration for his service connected with a math or temple as also to an inam granted to the institution directly. Their lordships, in that case, were dealing with the inams granted to an office holder as a remuneration for the service rendered by them and therefore, it was held to have been within the purview of Section 44-B. In that case, the inams were originally granted to the temple for the purpose of service connected therewith. The trustees of the temple appointed persons to perform those services (Palanquin-bearing) and placed the inams in their possession, to be enjoyed by them as remuneration for the services to be rendered by them. The Inam Commission also confirmed the grant in favour of the hereditary office holders then rendering the service. Their successors-in-title alienated the inam lands in favour of the plaintiffs. The plaintiffs/alienees claimed title to the lands on the footing that the grant in favour of the inamdars was of both warams. It was held that the inams in question were within the purview of Section 44-B of the Hindu Religious Endowments Act and could be resumed under Section 44-B(2)(i), though the alienations were made before 1934 when the section had come into force. The said judgment, in all force, applies to the facts of the present case.

13. Assuming that originally the temple had 50 years of enjoyment in 1963, the lands were comprised in T.D. No.1082 and the Inam Register shows that the grant is for service of Thirumalaikatti in the Pagoda of Sundararaja Perumal of Alagarkoil. The grant was confirmed for the office of 'Bhandari' and noted as permanent in Column 10 of Ex.B.1, viz. certificed copy the Inam Register for T.D. No.1082. Once it is found that the inam was granted to an office holder as remuneration for an office, Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 empowers the resumption of the grant of inam granted for the performance of service. The section says that any exchange, gift, sale or mortgage or 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 religious institution or for the performance of a charity or service connected therewith be or of any other religious charity and made, confirmed or recognised by the Government shall be null and void. It is submitted that the Collector had already commenced proceedings by invoking this provision. The grant of lease under Ex.B.1 in favour of Ramasamy Iyer and the subsequent alienations clearly attract Section 44-B of the earlier Hindu Religious Endowments Act and Section 41 of the present Act.

14. A Division Bench of this Court, in P.V. Bheemasena Rao vs. Srigiri Pedda Yella Reddi [1954 (I) M.L.J. 384], while considering Board' s Standing Order 54, held that the said provision is an indication of the type of inams dealt with by Section 44-B of the Madras Hindu Religious Endowments Act II of 1927, viz. besides regular endowments for the institution, only purely service inams, as distinct from personal inams, are included within its purview. The case of personal grant, though burdened with service, would be obviously outside this category. The Board's Standing Order is a provision analogous to Section 44-B of the Madras Hindu Religious Endowments Act. In P.V. Beehamasena Rao vs. Srigiri Pedda Yella Reddi [1961 (II) M.L.J. (S.C.) 190], the Supreme Court held that Section 44-B(1) of the Madras Hindu Religious Endowments Act, though on a wide interpretation, which might also include personal inams burdened with service, is really confined to inams directly granted to the temple or service inams for the purpose of a temple and does not include personal inams burdened with service. Such inams would continue to be dealt with under Board's Standing Order 54, Clause (b). In V.E. Ramanathan Chettiar vs. Kalidasa Kavandan [1971 (I) M.L.J. 398], a learned Judge of this Court held that a mortgage of a temple service inam land is invalid as opposed to public policy and a lease for 99 years or for a long term is as much an alienation as a sale or a mortgage is. Therefore, if the alienation is such that it would lead to a loss or deprivation of the property to the temple, it must be held to be invalid.

Civil Court Jurisdiction

15. The plaintiffs are the present office bearers of Pandari Service in Alagarkoil and Ponnu Pandari was appointed by the Manager of the temple in the year 1863 for the purpose of service. Section 8(2)(ii) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Act XXX of 1963) provides for the grant of patta in the case of any other land to the individual rendering service and the patta was considered and granted under this section to the plaintiffs as per the proceedings of the Settlement Tahsildar dated 21.11.1961. Section 21 of Act XXX of 1963 provides sufficient safeguards in case of service inams if the service holder fails to render the service. Section 21 of Act XXX of 1963 says that the provisions of the said section shall apply in respect of any minor inam which was held before the appointed date by an individual referred to as the service holder on condition of rendering service to the religious institution. The service holder shall, subject to cSub-section (3), continue to render service after the appointed date. Sub-section (3) gives an option for getting discharged from the conditions of the service within a specified period, which period has already expired. Sub-section (6)(b) to Section 21 says that if the service holder fails to render the service, the prescribed officer, after such enquiry and after such notice to the service holder, notify such failure, consequent on which the property will become the absolute property of the institution and the institution shall be at liberty to make such arrangements as it thinks fit for the performance of the service. Sub-section (7) says that so long as the service holder renders the service, he shall be entitled to occupy permanently the lands for which he is entitled to patta under Section 8.

16. In the patta proceedings, the plaintiffs as well as the temple through the Executive Officer and the defendants were the contesting claimants and the Settlement Tahsildar found that the coule deed is valid and binding in view of the compromise decree. On the question of the persons entitled for patta, the Officer found that the plaintiffs, who are persons doing service, are entitled to patta and rejected the claim of the remaining claimants. It was further found that the coule is only a lease and that if the service holder could not cultivate the land personally, he is at liberty to lease it out and if the service holder fails to render the service, sufficient safeguards have been provided under Section 21 of the Act. As against the said order granting patta, the first defendant had filed an appeal, C.M.A. No.299 of 1970, before the Subordinate Judge, Madurai, who by a judgment dated 11.3.1975, confirmed the order of the Settlement Tahsildar. It has to be stated at this stage that though the Settlement Tahsildar has stated that the coule deed is binding on the parties, it was on the basis of the compromise decree. Whereas, the appellate court found that the terms of the compromise would be valid and binding upon the respective parties, but it will not clothe the defendants' right to claim patta.

17. In Ramu Nadar vs. Sundararaja Iyengar [1979 (II) M.L.J. 95], V. Ratnam, J. (as he then was) was concerned with the question as to whether the application of the provisions of Act XXVI of 1963 will have any effect on the rights of an othidar to seek redemption of the property in question. It was common ground that the kudivaram in the property sought to be redeemed was othied by the inamdar. It was contended by the appellant that the right of redemption was lost because under the vesting section, the inamdar had lost his right and consequently could not maintain a suit for redemption. The learned judge applied the decision of a Division Bench of this Court rendered in Kuttachi & Others vs. Mohammed Sultan Rowther [1975 T.L.N.J. 451] to the effect that though the hypotheca is situate in a part inam village notified and taken over under Tamil Nadu Act XXVI of 1963, still for the purpose of redemption, the jural relationship between the mortgagor and the mortgagee remained unaffected. The same view was taken in L. P.A. No.1 of 1979. The decisions referred to by the counsel for the respondents would not be of any assistance to him in this case in view of the specific bar of alienation which would be inconsistent with the grant made in favour of the predecessors of the plaintiffs.

18. In R. Manika Naicker vs. E. Elumalai Naicker [A.I.R. 1995 S.C. 1 613], the Supreme Court held that an inamdar who continues to be in constructive possession of the site even after the notified date would be entitled to recover possession from his tenant. Their lordships also held that the purpose of Act XXX of 1963 is to introduce ryotwari settlements in the place of rights of inamdars in minor inams with the exception of certain type of public lands set out in Section 10, such as forest land, which was set apart for common use of the villagers etc. and which vests with the Government and in respect of which no ryotwari patta can be granted.

19. A Full Bench of this Court, in Srinivasan & Others Sri Madhyarjuneswaraswami, Pattaviathalai [1998 (I) C.T.C. 630], was concerned with the maintainability of a civil suit in the light of the provisions of Tamil Nadu Act XXX of 1963. The Full Bench has taken the view that the jurisdiction of a civil court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act XXX of 1963. Their lordships, while referring to the decisions on the subject, found that the ultimate object of one or the other of these legislations is the introduction of ryotwari settlement after abolishing the existing land tenure and acquiring the rights of the land holders or inamdars concerned who were considered to be intermediaries between the actual tiller of the soil and the State. The adjudication under these Acts do not mean and even intended to be a substitute or alternative mode of resolution of the ordinary civil right of a citizen or for that matter, persons asserting their rights in their attempt to a claim for patta. It was held that the jurisdiction of a civil court cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or required to be adjudicated for the purpose of enforcement of these laws which is as their objection and aim to implement ryotwari settlements in the areas governed by them. Their lordships relied on the judgment of the Supreme Court in State of Tamil Nadu vs. Ramalinga Swamigal Madam [A.I.R. 1986 S.C. 794], wherein it was held that the jurisdiction of the civil courts to adjudicate on the real nature of the land is not ousted.

20. Applying the ratio laid down in the above decisions, it is seen that the issue before the civil court in our case is not between the inamdar and the State or the institution. The issue now before us is between the inamdar and the person claiming under the inamdar. Therefore, the defendant cannot claim better right than what the inamdar had been conferred. There could not have been a permanent lease from the inamdar which would clearly outside the scope of the grant and against the public policy as also the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Even if the jurisdiction of the civil court is saved, the courts have recognised certain exceptions like public or communal properties and the rights which inhere or the basis and fundamental rights which entitle a person to preferentially get patta under this legislation.

On the question of estoppel

21. The first plaintiff and the father of the first defendant and another, in a suit for recovery of possession, entered into a compromise, recognising the coule deed dated 24.5.1898 as valid and binding and confirmed the permanent right of occupancy in the suit lands in favour of the defendants. The said compromise became part of the decree dated 24.11.1944 in O.S. No.49 of 1944 shown as Ex.B.3. Incidentally, the said compromise also anticipated a possible question on the merits and legality of the compromise. The case of the defendants is that the compromise estops the plaintiffs from putting forth a claim over the inam lands, and besides, that the suit is barred by the principle of res judicata. The case of the plaintiffs is that there is no estoppel against a statute and that the creation of a permanent lease is void ab initio and further, the compromise entitling the first defendant to hold the land on that basis is also void and not binding on the plaintiffs. There is much force in the said contention.

22. Section 6(d) of the Transfer of Property Act, 1882 says that an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Section 17(b) of the Registration Act, 1908 says that a document of lease of immovable property for any term exceeding one year shall be registered. However, in reference to a deed which is of a non-testamentary character coming under Clauses (b) and (c) of Sub-section (1) and therefore, there cannot be any doubt that a lease of an immovable property for a term exceeding one year has to be compulsorily registered. In this case, admittedly, the compromise decree, which has recognised the alleged permanent lease, has not been registered. In Sachidananda Mohan vs. Ramjash [A.I.R. 1932 Patna 97], a Division Bench of the Patna High Court held that a decree operating to create a lease is not exempt from registration under clauses (b) and (c) and consequently, a lease comprised in the petition of compromise and interpreted in the consent decree is not admissible in evidence under Section 92, if not registered. We are in agreement with the said view.

23. A Division Bench of this Court, in Sangili vs. Ramakrishnan [197 4 (I) M.L.J. 87}, held that a compromise decree is not a decision by the court and it is the acceptance by the court of something to which the parties had agreed; and a compromise decree merely sets the seal of the court on the agreement of the parties, and the court does not decide anything nor can it be said that a decision was implicit in it. Only a decision by a court can be a res judicata, whether statutory under Section 11 of the code of Civil Procedure or constructive as a matter of public policy, on which the entire doctrine rests. The compromise decree cannot directly be regarded as a decision on a matter which was heard and decided and, therefore, cannot operate as res judicata. Their lordships followed the decision of the Supreme Court in Pulavarthi Venkata Subba Rao & Others vs. Valluri Jagannadha Rao [1964 (2) S.C.J. 518]. Their lordships held that it is open to the plaintiffs to ignore such decree and pray for necessary relief of declaration of title and recovery of possession on the basis that the said decree is null and void and inoperative. In Biswabani Pvt. Ltd. vs. Santosh Kumar [A.I.R. 1980 S.C. 226], the Supreme Court held that a consent decree incorporating the terms of a fresh lease, to be effective as a valid lease, required registration in view of the provisions contained under Section 107 of the Transfer of Property Act read with Section 17(1)(d) of the Registration Act 1908, because the period reserved under the lease was exceeding one year. It was held that if the lease is void for want of registration, neither party to the indenture can take advantage of any of the terms of the lease.

24. Learned senior counsel for the appellants did not pursue his arguments on the payment of court fee since it is conceded that the right sought for by the plaintiffs is incapable of valuation as valid as religious service inam land pertaining to the service of Kallalagar Temple and a fixed court fee of RS.15/- is paid. The appellants also have paid the same court fee in this Appeal.

25. For all the above reasons, we find that the inam is a service inam and that the alienation made in the form of a permanent lease is illegal and the plaintiffs are entitled to continue in possession of the property by virtue of the patta granted, which has become final. We further find that the plaintiffs are not estopped from questioning the compromise and the said compromise decree is not binding on the principle of res judicata.

26. Accordingly, we confirm the judgment and decree of the court below and dismiss the appeal. However, there will be no order as to costs.

ab Index : Yes Internet : Yes To

1. The Principal Subordinate Judge, Madurai (With Records).

2. The Record Keeper, V.R. Section, High Court, Chennai.

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