Madras High Court
Vedantam Narasimhacharyulu vs Pothuri Kotayya, Trustee Of Sri ... on 1 February, 1952
Equivalent citations: AIR 1953 MADRAS 615
ORDER Basheer Ahmed Sayeed, J.
1. This revision petition is against the order of the learned District Judge of Guntur made on an application by respondent I, under Section 78, Hindu Religious Endowments Amendment Act (Act 10 of 1946).
2. Respondent 1 herein claiming to be the trustee of the Sri Venugopalaswami and Anjaneyaswami temple situate at Vallur, filed the application under Section 78, Hindu Religious Endowments Act, to direct the petitioner and the other respondents to deliver possession of the petition-schedule properties described in Schedules A and B to him and respondents 20 and 21, the latter also being trustees appointed along with respondent 1 petitioner in the lower Court.
3. The petitioner before me raised objections as to the tenability of the petition before the District Court on the ground that the case was not one covered by Section 78, Hindu Religious Endowments Act and that the Court had no jurisdiction to direct delivery of possession of the properties to the trustees. A further ground was also alleged viz., that the certificate required udder Section 78 was also not produced and that what was produced at a later stage was not the proper certificate required by that section. The learned District Judge held that, so far as the movable properties were concerned, the certificate issued by the Board did not comprise them, and therefore, he did not direct possession of the schedule-mentioned movable properties. But in regard to the immovable properties, which were claimed to be in the possession and enjoyment of the archakas, he directed, holding that the certificate was a valid certificate, that since the trustees have been appointed as such by the Board, they were entitled to recover possession and, therefore, the respondents were bound to deliver possession and allowed the petition. Against this order, this revision petition is preferred.
4. The learned counsel appearing for the petitioner in this Court has raised various points as to the sustainability of the order of the learned District Judge. The first point that he has raised is that the provisions of Section 78, Hindu Religious Endowments Act do not warrant an enquiry by the learned District Judge into a case of this type, where the archakas claim to be in possession of the properties for over a long period covering more than a century and performing services to the temple deities, viz., Sri Venugopalaswami & Anjaneyaswami. His specific contention is that Section 78 would apply only to properties, which are admitted to be trust properties and in regard to which there could be no bona fide dispute but that where the parties, who are in possession claim to be bona fide in possession on their own account, the Court will have, no jurisdiction to enquire into the matter on a petition. The section contemplates a summary procedure and in summary procedure, where there is a bona fide dispute with regard to title to the properties claimed by the temple or by the trustees on behalf of the temple, the jurisdiction of the Court is ousted.
5. The learned counsel for the petitioner has relied on the decision in --'Rangacharyulu v. Venkatanarasimhayya', AIR 1949 Mad 897(A). On a careful consideration of the judgment at the Bench of this Court, consisting of Satyanarayana Rao and Panchapagesa Sastry JJ, In the said decision I am in agreement with the view that the policy underlying Section 78 and the scheme itself, as may be gathered from the various clauses of that section, is only to give summary jurisdiction for making a direction in regard to delivery of possession of properties, which admittedly belong to the trustees or to the temple, and not properties, which are not admittedly trust properties and, in respect of which there happens to be a genuine and bona fide dispute as to the title and possession. The language of the section appears to be clear as has been pointed out by the learned Judges in the decision cited above, particularly at page 203, where Satyanarayana Rao J. has stated that "the claim of a person in possession in good faith, on his own account - or on account of a third person, who was not such a trustee, office-holder, or servant is excluded from the ambit of the section."
If this decision applies to the facts of this case as it does, the point that is next to be ascertained is whether the claim of the archakas in this case is one, which is based on a bona fide claim of title in respect oil properties or whether they claim under any of the trustees or servants or office-holder of the temple.
6-7. The evidence in this case, which is contained in two documents viz., Exs. A. 3 and A. 4 seem to indicate that the position of the petitioner is not that he held the property under any trustee or any office-holder or any servant but that he claimed the property in his own right and on his own account and at any rate these two documents point to the fact that it is a service inam granted for performing certain services to Sri Venugopalaswami and Sri Anjaneyaswami temple at Vallur. That is expressly stated in Col. 8 of Ex. A. 3. Col. 17 also sets out that the service was being, at that time, rendered by Vedantam Narasimhachari, who appears to be the ancestor of the present petitioner. No doubt, the title deed has been issued in the name of the deities. In all service inams, it cannot but be the title deed has to be issued in the name of the deities, whereas the holders happen to be persons, who enjoy the property and perform services in the temple. This is also no doubt a devadayam but devadayam in the sense that it is a service inam granted for the purpose of service to the God in the temple. Even so, Ex. A. 4 is to the effect that the inam is granted to Sri Swamivarlu's enjoyment as per col. 1 (extract of the inam statement) but col. 6 makes it clear that it was granted by the then zamindar of Vallur Rajah Manchayarao Ehavanarayana Rao garu for conducting Sri Swamivaru 'nitya naivedhya deeparadhana' and in col. 11 it is said that it was for "enjoyment for Sri Swamivarlu 'nitya naivedya deeparadhana". What have been set out in cols. 1, 6 and 11 of Ex. A. 4 do not leave any room for doubt that the inam has been only a service inam granted for the purpose of performing or conducting the 'nitya naivedya deeparadhana' in the temple. In such circumstances, if the archakas, who claim to be in possession and enjoyment of the property for over a century, put forward a claim that they are entitled to the property on their own account, certainly this cannot be said to be property belonging to the trustees admittedly. Therefore, Section 78 of the Act would not be attracted to a case like this, where there is a bona fide dispute as to the, title. It may be a matter for elaborate enquiry and decision as to whether the properties actually belong to the temple and the archakas have no right or whether the property is burdened with service or whether the archakas could hold the properties in their possession on their own account or on account of a third person who was a trustee, office-holder or servant. But even if such be the case, it cannot be the intention underlying Section 78, Hindu Religious Endowments Act that such questions of title, which involve an elaborate enquiry, should be gone into in a summary manner in a petition of the kind under consideration,
8. The learned counsel for the respondents relies upon the new Section 87 of Act 19 of 1951, and he would contend that Section 87 supports his view that a case like this can be summarily enquired into or an order for delivery of possession could be issued by the District Court. I do not think I can agree with this contention of the learned counsel for the respondents. The language, in essence, of Ss. 78 and 87 do not differ materially in regard to the nature of the property or the nature of the claim that has to be enquired into nor has the new Section 87 taken away the character of the enquiry, viz., that it should be a summary enquiry in regard to properties that are admitted to be trust properties. The spirit of Section 78 is carried into Section 87 without any alteration. That seems to be the position on a careful consideration of the language of that section. Therefore, even if Section 87 applies to the present case, though it is not conceded by the learned counsel for the petitioner for the reason that according to him a Bench of this Court has already held that the repealing Section 5 of the Act 19 of 1951 has been held to be ultra vires, still I am of the opinion that the scope of Section 87 is not, in any way, different from the scope of Section 87 in so far as the remedy of summary procedure is provided for in order to get hold of properties, which are admitted to be trust properties by the trustees, who are appointed by the Board. Therefore, on the facts of this case, I do not think that the learned District Judge had any jurisdiction to issue, an order that the petitioner before me should be directed to deliver possession of the properties under the O. P. that was filed for the purpose by the trustees.
9. There is a further point that has been raised with regard to the validity of the very proceedings taken out by the trustees, and that while Section 78 provides that a valid certificate issued in the prescribed manner should have been produced along with the petition and that the certificate actually produced during the course of the enquiry after the petition was filed was not one issued in accordance with law in that while the section required that it should be issued in the manner prescribed by the rules, it was issued long prior to the actual framing of the rules by the Government under the powers vested in the Government to frame rules under Section 71 of the said Act. Prima facie, there is some force, on the contention that the certificate, which enabled the trustees to claim a right to the property, was not one, which was issued in accordance with law as it then stood, but the learned counsel for the respondents invites my attention again to Section 87 and the proviso thereto which states that "for the purpose of proceedings under this section (Section 87), the certificate shall be conclusive evidence that the properties to which it relates belong to the religious institution." This proviso can come into operation only if and when the certificate has been issued in accordance with the law and the procedure prescribed and the manner in which it should have been issued as per the rules framed, but if actually a certificate has been issued when the rules had not been framed, and when there was, therefore, no valid certificate in the possession of the trustees, who proceeded to the Court for a direction for delivery of the properties, it cannot be said that this proviso would be applicable to the certificate. Nevertheless, the learned counsel for the respondents would invite further my attention to Section 103 of Act 19 of 1951. While under Sub-clause (a) "all rules made, notifications or certificates issued, orders passed, decisions made, proceedings or action taken, schemes settled and things done by the Government, the Board or its President or by an Assistant Commissioner under the said Act, shall, in so far as they are not inconsistent with this Act, be deemed to have been made, issued, passed, taken, settled or done by the appropriate authority under the corresponding provisions of this Act & shall, subject to the provisions of Clause (b), have effect accordingly"
it must be pointed out that the section provides that the certificate must not be inconsistent with the provisions of the present Act. The proviso to Section 87 provides that "before issuing any such certificate in respect of any property, the Commissioner shall give notice to the trustee, office-holder or servant of the religious institution, as the case may be, of his intention to issue the certificate and consider the objections, if any, of such trustee, office-holder or servant", but, in this case, this proviso cannot be said to have been satisfied and, therefore, the issue of the certificate, even though it might have been issued under the previous provisions of law and even if Sub-clause (a) to Section 103 may be said to apply to that certificate, still it cannot be said to be a valid certificate to be operative in the proceedings.
10. The explanation to Sub-clause (a) of Section 103 is also relied upon by the learned counsel for the respondents wherein it is stated that "certificates issued by the Board under Section 73 of the said Act shall be deemed to have been validly issued under that section, notwithstanding that the certificates were issued before the making of rules prescribing the manner of their issue."
Even this explanation, in my opinion, is not of much avail to the learned counsel for the respondents. The learned counsel has again invited my attention to Sub-clause (j) of Section 103 whereby it has been provided that "all suits, applications or proceedings taken by, or on behalf of, or against the Board under the provisions of the said Act and pending at the commencement of this Act, may be continued by, or on behalf of or against the Commissioner subject to the provisions of and in so far as they are not inconsistent with this Act."
I do not think that this clause, which gives power for the continuation of pending proceedings would apply to the facts of the present case. Even so, Sub-clause (k) of the same Section 103 of the new Act, whereby "any remedy by way of application, suit or appeal, which is provided by this Act shall he available in respect of proceedings under the said Act pending at the commencement of this Act as if the proceedings in respect of which the remedy is sought had been instituted under this Act"
does not seem to be of much help in regard to the points that have been raised in this petition.
11. The learned counsel for the respondents has also relied upon a decision in -- 'Narayana Iyengar v. Desika Chariar', AIR 1933 Mad 689 ((B), and also two other decisions of this Court, viz., -- 'Hindu R. E. Board v. Koteeswara Rao', AIR 1937 Mad 852 (C) and -- 'Venkatadri v. Seshacharyulu', AIR 1948 Mad 72 (D). I do not think the facts of those cases are on a par with the facts of the present case. I ami unable to agree that the rulings in those decisions apply to the facts of the present case. On the other hand, I think the decision in --'Venkatasubbarao v. Narayana Venkatacharyulu', 1931 Mad WN 898 (E), seems to apply to the facts of the present case in so far as the character and the nature of the holding is concerned. There are also two other unreported decisions of this Court which are in connection with claims in regard to properties, which were alleged to belong to a temple, and which may be referred to here, as they go to show as to what exactly the right of the archakas would be in respect of properties granted to a temple for performing 'nitya naivedya deeparadhana', In the judgment delivered by Satyanarayana Rao and Chandra Reddi JJ. in App, No. 218 of 1946, they have followed the earlier decision of this Court in -- 'App. No. 285 of 1945', wherein the interest of the archakas in the case of 3 similar nature has been directed to be settled at 2/3 of the temple lands. This has been again followed in another decision made by this Court in C. M. A. No. 8 of 1949, to which I have myself been a party, and there it has been held that the archakas, similarly situated as in the present case, would be entitled to 2/3 of the net income for performing services to the temple. If such be the trend of decisions viz., that the archakas have a right in the lands, although the lands might have been originally granted to the temple, it cannot be said that such rights could be summarily disposed of in an application filed under Section 78, Hindu Religious Endowments Act. It could hot have been the intention of the Legislature that where the archakas claim right bona fide in the property said to belong to the deity of the temple, such rights should be disposed of without any proper inquiry in a summary manner.
11a. On a consideration of all these facts, I am inclined to hold that the order of the learned District Judge is not one that could be supported and it has to be set aside and it is set aside accordingly. The petitioner will be entitled to his costs in this petition.
12. If the archakas have been dispossessed of their, lands in execution of any order passed by the learned District Judge, it follows that they will be entitled to restoration of the property. In so far as the petitioner is only one of the archakas and the other archakas are appearing by Mr. V. Rangachari, the benefit of this order will be available not merely to the petitioner but also to the clients of Mr. V. Rangachari who has himself argued the appeal on their behalf as well.