• ill ..

sm. DAYAWATI AND ANOTHER v.

INDERJIT AND OTHERS

I anuary 14, 1966

[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACH>.WAT, JJ.l,

UsurloW1 Loans Act, 1918 (10 of 1918), s. 3, as amended bys. 5 of Punjab Rellej oj Indebtedness Act-Section 6 of latter Act making s. S applicable to "all suitJ pending or to be instituted after the COrnm<!lfC<- ment of this Acf'-Appeal filed against judgment in suit-Whether suit 'pending' within meaning of s. 6.

Interest in excess of 7! per cent was awarded to the appellants by the trial court in a mortgage suit against the respondents. The respondents filed before the High Court, wbere an appeal by them against the decree of the trial court was pending an application under s. 3 of the Usurious Loans Act, 1918 as amended by s. S of the Punjab Relief of Indebtedness

Act.

They claimed, by virtue of the latter provision, that interest in excels of 7i per cent could not be awarded in the suit.

The Hilh Court having accepted the contention, the appellants came to this Court by special leave and contended that an appeal having been filed against the trial court's judgment in the suit, the said suit could not be said to be pending' within tho meaning of s. 6 of the Punjab Act on the relevant date, and therefore s. S would not apply .

HELD: (i) Tho word 'suit' includes an appeal from the judgment in the suit.

The only difference between a suit and an appeal is that an appeal "only reviews and corrects the proceedin8" in a cause already constituted but dO<lS not create the cause." In the present Act the intention is to g;..., relief in respect of excessive interest in a suit which is pendina and a preliminary decree in a suit of this kind does not terminate the suit. The appeal is a part of the cause because the preliminary decree which emerges from the appeal will be the decree, which can become a final decree.

(281 D-F)

(ii) The words of s. 6 speak of a suit pending on the commencement of the Act and it means a live suit whether in tne court of first instance or an appeal court where the judgment of the court of first instance is being considered. It only excludes those suits in which nothina further needs to be done in relation to the rights and claim litigated, because an executable decree which may not be reopened is already in existence.

The decision of the High Court was right in applying s. 3 of the Usurious Loans Act (as amended) to the case. (282 A, BJ

(iii) Ordinarily a court of appeal cannot take into account a new law, brought into existence after the Judgment appealed from ha• been rendered, because the rights of the litigants in an appeal are determined under the law in force at the dste of the suit. Matters of procedure are however different and the law affecting procedure is always retr05ive.

But it does not mean that there is an absolute rule of inviolab11ity of mbstantive rights.

If the new law speaks in language, which expressly or by clear lntendment, takes in even pending matters, the court of trial as well as the court of appeal may give effect to such a law even afler the judgment of the court of first instance, The distinction between laws affecting procedure and tlto•e affecting vested rights does not matter wbea the court is)nvited by law lo take away from a plaintil!, what he has obtal!led under a judgment. (280 B-Hl

276 SllPRHIF COURT REPORTS

[ 1966] 3 S.C.R.

Quilter v. Mapleson, (1882)9 Q.B.D. 672, Slavin v. Falrbrass (1919)88 ,.\ LJ. K.B. 1004 and Mukerjee (K.C.) v. Mst. Ramratan, 63 I.A. 47, refer red to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 246 of 1964.

Appeal by special leave from the judgment and decree dated October 15, 1959 of the Punjab High Court (Circuit Bench) at Delhi in R.F.A. No. 1-D of 1954.

S. T. Desai, D. R. Prem and Mohan Beharilal, for the appel !ants.

N. C. Chatterjee, and H. P. Wanchoo, for respondents Nos. to 5.

Tiry11gi Narain, for respondent No. 6.

The Judgment of the Court was delivered by

Hidayalullah, J. In this appeal by special leave against the judgment and decree of the Punjab High Court dated October 15, D 1959 the only question is whether, in the facts to be stated presently, the High Court was right in reducing interest m a preli minary mortgage decree dated August 12, 1953 by applying ss. 5 and 6 of the Punjab Relief of Indebtedness Act which were extended to Delhi on June 8, 1956.

On January 17, 1946, Hazarilal (predecessor of respondents 1 to 5) and one Jagat Narain (respondent 6) executed a simple mortgage deed for Rs. 50,000 with interest at 9% per annum or in default of payment of interest for 3 months at Re. 1 per cent per month for the period of default.

As the mortgagors made default in payment of interest and also did not pay anything out of the mortgaged amount a suit was filed for enforcement of the mort!!age by sale of properties.

The claim was for Rs. 76,692/9/8, by calculating interest at 9 per cent per annum for the first 3 months and at 12 per cent per annum till institution of the suit and allowing credit for Rs. 14,000 as repayment. The defendants admitted the mortgage and the consideration but pleaded that the rate of interest was both penal and excessive.

This plea was not accepted and a preliminary decree was pa•sed for the full claim on August 12, 1953.

Ha7.arilal alone anpealed on January 5, 1954 (R.F.A. No. 1-D of 1954)' and asked for reduction of interest by Rs. 7,900 and of the rate of future interest to 9 per cent per annum. Court fee was paid on Rs. 7, 900.

During the pendency of this appeal the decree was made final on April 3, 1954.

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DAYAWATI v. INDERJIT (Hldayatullah, /.) 277

Before the appeal was disposed of Inderjit and Satya Narain, sons of Hazarilal, filed a suit for a declaration that the properties were ancestral and belonged to a joint family.

They claimed that the properties could not be sold and asked for a temporary injunction which was first granted and later vacated.

Against the order vacating the stay they filed an appeal (F.A.O. 68-D of 1957) and obtained temporary stay from the High Court.

The mortgagees also filed in that appeal a petition ( S.M. 1318-D of 1957) for vacation of the stay order.

On February 10, 1958 a conditional stay order was passed by a learned single Judge of the High Court but we need not trouble ourselves with it.

On October 29, 1958 the legal representatives of Hazarilal (respondents 1 to 5) presented an application under s. ,3 of the Usurious Loans Act, as amended by s. 5 of the Punjab Relief of Indebtedness Act, when the latter Act was extended to Delhi on June 8, 1956 under s. 2 of Part C States (Laws) Act, 1950 (30 of 1950) and claimed that interest in excess of 7t per cent per annum could not be awarded in this suit.

We may, at this stage, read the relevant sections.

Section 3 of the Usurious Loans Act, in so far as it is material to our purpose, reads as follows :-

"3. Re-opening of transactions. ( 1) Notwithstanding anything in the Usuary Laws Repeal Act, 1855, where, in any suit to which this Act applies, whether heard ex parte or otherwise, the Court has reason to believe,- ( a) that the interest is excessive; and (b) the Court may exercise all or any of the following powers, namely, may,- ( i) re-open the transaction, take an account between the parties, and relieve the debtor of all liability in respect of any excessive interest;

(2) (a) In this section "excessive" means in excess of that which the Court deems to be reasonable having regard to the risk incurred as it appeared, or must be taken to have appeared, to the creditor at the date of the loan.

H (b) (c) (d)

278 SUPREME COURT ltEPOJlTS

[1966]3 S.C.R.

( 3) This section shall apply to any suit, whatever its form may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security.

By s. 5 of the Punjab Relief of lndebtednes; Act, it WI!! p!'Ovidcd :-

"5. Amendment of the Usurious Loans Act, 1918.-

ln section 3 of the Usurious Loans Act, 1918 (X of 1918)-

(i) for the word "and" in clausc(a) of sub-section

(i) the word "or" shall be substituted.

(ii) for the word "may" where it appears for the first time in sub-section ( 1) the word "shall" shall be substituted.

(iii) for the word "may" after the word "namely" in sub-section ( 1) the word "shall" shall be substituted.

(iv) to sub-section (2) the following clause shall be added, namely :-

.. ( e) The Court shall deem interest to be excessive if it exceeds seven and-a-half per centum per annum simple interest or is more than two per centum over the Bank rate, whichever is higher at the time of taking the loan, in the case of secured loans, or twelve and-a-half per centum per annum simple interest in the case of unsecured loans; Provided that the court shall not deem interest in excess of the above rates to be excessive if the loan has been advanced by the State Bank of India or any bank included in the Second Schedule to the Reserve Bank of India Act, t 934, or any banking company registered under the Indian Companies Act, 19 t 3 prior to the first day of April, t 937 or any cooperative society registered under the Bombay Cooperative Societies Act, 1925, as extended to the State of Delhi."

Section 6 of the Act gave retrospective effect to the above provi- !rlons by enacting :-

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DAYAWATI v. lNDERJIT (Hldayamllah, J.) 279

"6. Retrospective effect.-·

The provisions of this part of the Act shall apply to all suits pending on or instituted after the commencement of this Act."

The decree-holders opposed the application on several grounds.

B The main grounds (and they are the grounds urged in this Court) were that s. 5 of the Punjab Relief of Indebtedness Act merely amended s. 3 of the Usurious Loans Act, that neither section applied to the facts of the case and that no such plea was taen in the court below.

R.F.A. 1-D of 1954 came up for heanng on October 15, 1959 before a Divisional Bench and by the judge ment under appeal the amount of interest in the mortgage was

reduced by Rs. 15,027 by applying the provisions of the Punjab Relief of Indebtedness Act. The Divisional Bench followed an earlier decision of the same court reported in L. Ram Sukh Das v.

Hafiz-u/-Rahman and others.(') It was held in that case that the

D provisions of the Punjab Relief of Indebtedness Act applied to a case in which a decree had already been passed and an appeal was pending at the time the amendment was brought into force.

The Divisional Bench in this case held that on the date on which they decided the appeal the provisions of the Punjab Relief of Indebtedness Act had been extended to Delhi and they were required to apply those provisions and interest in excess of 7! per

cem per annum could not be awarded.

The preliminary decree was modified by reducing interest up to the date of the suit to Rs. 11,665 by applying the rate of 7 t per cent per annum simple and future interest was awarded als0> at the same rate.

The judgment debtors who had applied in the High Court were ordered to make good the court fee on Rs. 7,127.

After sundry unsuccessful proceedings which included an application for review and another for a certificate, the decreeholders filed this appeal after obtaining special leave of this Court.

In this appeal it is contended on behalf of the decree holders G that s. 5 of the Punjab Relief of Indebtedness Act can only apply to a suit instituted or pending after the section comes into forcec and not in an appeal after the suit has ended in a decree.

It is further contended that this will be all the more so, because the seetion itself is made retrospective for suits pending on or instituted after the commencement of the Act and thus cannot affect the H vested right which the judgment had given to the appellants. We have, therefore, to decide whether the provisions of ss. 5 and 6-

(1) A.T.R. 1945 Lah. 177.

Ml OS up. Cl/66-5

2110 SUPllEME COURT REPORTS

[1966] 3 S.C.R.

of the Punjab Relief of Indebtedness Act could be invoked by the A Divisional Bench to reduce the interest as stated above.

Tho amended section 3 of the Usurious Loans Act is plainly mandatory because it makes it obligatory for a court to rc-ope11 a transaction if there is reason to believe that the interest is oxcessive.

Further, where the rate of interest exceeds seven and a half B percentum per annum simple, the court must hold that it is excessive.

Therefore if the amended section 3 of the Usurious Loans Act applies to the case in hand, the High Court was right in acting as it did.

To this Mr. S. T. Desai raises no exception.

He contends, however, that s. 6 of the Relief of Indebtedness Act in giving retrospection to section 5 by which the amendments C were made, limits it to suits pending on or instituted after the commencement of the Relief of Indebtedness Act and submits that the suit here was neither pending on nor instituted after June 8, 1956 when that Act commenced in the Union Territories of Delhi.

The respondents in reply submit that the appeal court must apply the provisions of the Relief of Indebtedness Act same as the court D -of trial, because the word 'suit', where the section speaks of a pending suit. includes an appeal from the decision in the suit.

Now as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been E rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit.

Even before the days of Coke, whose maxim-a new law ought to be prospective, not retrospective in its operation-is oft-quoted, courts have looked with disfavour upon laws which take away vested rights or affect pending cases.

Matter~ of procedure are, how- F ever, different and the law affecting procedure is always retrospective.

But it does not mean that there is an absolute rule Qf inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of G :appeal may give effect to such a law even after the judgment of the court of first instance.

The distinction between laws affecting procedure and those affecting vested rights does not matter when the court is invited by law to take away from a successful plaintiff, what he has obtained under judgment.

Sec Quilter v.

Mapleson(') and Stl7Vi11 v. Fairbrass,(') which are instances of new H laws being applied. In the former the vested rights of the landlord

(1) (1882) 9 Q.B D 672.

(2) (1919) 881..J. K.B. 1004.

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DAYAWATI v. INDERJIT (Hidayatu/lah, J.) '., llU

A to recover possession and in the latter the vested right of ~· tutory tenant to remain in possession were taken away after Jl!ll8ment See also Maxwell's Interpretation of Statufi'.s (11th &Ill;)

pp. 211 and 213, and Mukerjee (K. C.) v. Mst. Ramratan,(1) where no saving in respect of pending suits was implied when s. 26(N) and (0) of the Bihar Tenancy Act (as amended; by B Bihar Tenancy Amendment Act, 1934) were clearly applicable to all cases without exception.

Section 6 of the Relief of Indebtedness Act is clearly re4'Qspective. Indeed, the heading of the section shows that it lays down the retrospective effect.

This being so, the core of the problem C really is whether the suit could be said to be pending on June 8, 1956 when only an appeal from the judgment in the suit was pending.

This requires the consideration whether the word 'suit' includes an appeal from the judgment in thei suit.

An appeal has been said to be "the right of entering a superior court, and invoking its aid and interposition to redress the error of the court D below." (Per Lord Westbury in Attorney General v. Sillem(').

The only difference between a suit and an appeal is this that an appeal "only reviews and corrects the proceedings in a cause already constituted but does not create the cause." As it is intended to interfere in the cause by its means, it is a part of it, and E in connection with some matters and some statutes it is said that an appeal is a continuation of a suit. In the present Act the intention is to give relief in respect of excessive interest in a suit which is pending and a preliminary decree in a suit of this kind does not terminate the suit. The appe; il is a part of the cause because the preliminary decree which emerges from the appeal F will be the decree, which can become a final decree.

Such an appeal cannot have an independent existence. If this be not accepted for the purpose of the application of s. 3 of the Usurious Loans Act (as amended) curious results will follow. The appeal court in the appeal is not able to resort to the section but if the suit were remanded the trial court would be compelled to apply G it.

For although, in the appeal proper, that judgment must be rendered which could be rendered by the court of trial, but if the suit is to be reheard, then the judgment must be given on the existing state of the law and that must include s. 5 by reasoa of s. 6 of the Punjab Relief of Indebtedness Act. It is hardly to be suggested that this obvious anomaly was allowed to exist. It H would, therefore, appear that in speaking of a pending suit, the legislature was thinking not only in terms of the suit proper but also

(I) 63 I.A. 47. (2J 11 E.R. 12·10 at 1209.

SUPREME COURT REPORTS

of 'those stages in the life of the suit which ordinarily take place A before a final executable document comes into existence. The words df the section we are concerned with, speak of a suit pending on the commencement of the Act and it means a live suit whether in the court of first instance or in an appeal court where the judgment of the court of first instance is being considered. It only excludes those suits in which nothing further needs to be done in relation B to the rights or claims litigated, because an executable decree which may not be reopened is already in existence. The decision of the High Coun wa~ right in applying s. 3 of the Usurious Loon~ Act

(as amended) to the case.

The appeal thus fails and it will be dismissed with costs .

.Appeal dismissed.

' I

DAYAWATI AND ANOTHER

INDERJIT AND OTHERS

K. SUBBA RAO

M. HIDAYATULLAH

Loans Act, 1918

s. 3

Punjab Rellej oj Indebtedness Act

Section 6

s. 6

s. 3

Usurious Loans Act, 1918

s. 6

s. 6

s. 3

Usurious Loans Act

CIVIL APPELLATE JURISDICTION

S. T. Desai

D. R. Prem

Mohan Beharilal

N. C. Chatterjee

H. P. Wanchoo

Tiry11gi Narain

Hidayalullah

August 12, 1953

ss. 5 and 6

Delhi

June 8, 1956

January 17, 1946

Hazarilal

Jagat Narain

January 5, 1954

April 3, 1954

Inderjit

Satya Narain

February 10, 1958

October 29, 1958

Usurious Loans Act

s. 5

s. 2

Section 3

Usurious Loans Act

s. 5

section 3

Usurious Loans Act, 1918

State Bank of India

Second Schedule

Reserve Bank of India Act

Companies Act

Bombay Cooperative Societies Act, 1925

Section 6

s. 5

s. 3

Usurious Loans Act

October 15, 1959

s. 5

ss. 5 and 6

section 3

Usurious Loans Act

section 3

Usurious Loans Act

S. T. Desai

s. 6

section 5

s. 26(N)

Bihar Tenancy Amendment Act, 1934

Section 6

Westbury

s. 3

Usurious Loans Act

s. 5

s. 6

s. 3


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TIIE ROMAN CATHOLIC MISSION v.

STATE OF MADRAS AND ANOTHER ; ;

January 14, 1966

[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,

M. HIDAYATULLAH, V. RAMASWAMI AND

P. SATYANARAYANA RAJU, JJ.]

Madras Hindu Religious Endawments Act (2 of 1927), s. 44-B-Vall. dlty. '

Melwara1n-Resumption by Gcrvermnent-Period of limitation.

lnam fair retister-V alue of

The suit lands were granted as inam for the perfonnance of puja in a Devasthanam.

As they had been alienated, Revenue DiYisional Officer, acting under s. 44B of the Madras Hindu Religious Endowment>

Act, 1926, resumed and regraoted them to the Devasthanam, holdinr that the inam consisted of both me/waram and kudiwaram. The appellant- Mission, \Vhich was in possession of the lands as alienee, filed su:ts for " declaration that the inam coosisted only of the Me/waram, that the grant was a personal inam not liable to resumption under s. 44B and tllat the section itself was ultTa vires the Provincial Legislature. The trial Court held that the inam consisted of both warams, but that it was a pers<)nal inam outside the purview of s. 42B~ and therefore decided in favour of the Mission.

On appeal, the High Court reversed bolh the findings and held that the section was intra vires.

In appeals to this Court by the Mission and the Dernsthanam,

, HELD : (i) A concatenation of the several po, vers of the Provincial Legislature undeu the Government of India Act, 1915, furnished adequate scope for comprehensive leg slation on the subject of in ams connectCli "1ith religious and charitable endowments.

Even if there was any doubt, the Governor-General in Council must ha\'e decided the question as per r. 4 of the Devolution Rules under the Government of India Act, 1915, and put an end to any controversy on the matter. The section and the amendment to it in 1946 would be sustained by s. 292 of the Government of lt:ldia Act, 1935, and tbP. power of the Provincial Legislature thereunder.

Section 44B was thus fully within the competence of the Provincial Legislature and the same would be tme of the corresponding section, s. 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951, vis-a-vis the Constitution.

[297 C-B, HJ

(ii) The lnam Fair Register incorporated an official declaration which was the result of detailed inquiries.

All evidence collected in respect of each inam was carefully sifted and considered before any conclusion was reached or declared. In the absence of positive and proper evidence t.o the contrary, such declaration must possess supreme importance. The High Court reached, on the admissible evidence, the right conclusion that the melwaram alone was the subject of the inain and that the inmn was always considered as remuneration for archaka service of the Devasthanam. The finding of the trial Court that it was. a personal irurm "".•• erroneous.

[290 B; 294 D-E; 295 E, F]

284 SUPREME COL'JtT

REPORTS

[1966) 3 S.C.R.

1Uunacha1am Cherty and othtr \'. Venlwlaclra/apatlrl, LR. 56 I.A.

A 204, applied.

(in) 32 & 33 Viet. c. 29 only validated the title deeds granted by the lnam Commission.

It did not create any contract, and thcrefo1e like any other grant which is resumable on breach of its conditions, this inarn ... -. was resumable according to its terms and conditions.

On aJienation, it was liable to re; umption under s. 448; and ns the resumption by the Governmeot was of the rne/waram only, and since there is no period of B limitation prescribed by any law, no question of adverse possession by the

MiMion would arise. (298 E, F) Boddapa//i Jagannadltam v. Secretary of State, l.L.R. 27 Mad. 16 and Subranwn/am Chettiar v. Secretary of St111e, 28 M.L.J. 392, applied.

(iv) By the resumption and rcgrant what was done was only to restore to the Devasthanam what it had lost.

Therefore, it was not a case of putting a deoonminational religio1l• inslitutionn at an advantage. [297 C

F-0)

CIVIL APPELLATE JUR!SD!C'f!0:-1 : Civil Appeals Nos. 389 of 1964 and 69 of 1965.

Appeals from the judgment and orders, dated December 14, 1959 of the Madras High Court in A. S. Nos. 773 and 787 nnd Appeal No. 734 of 1954 respectively.

S. G. Ramchandra Iyer, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant (in C. A. No. 389/64) and Respondent No. l (in C. A. No. 69/65).

Ran1:mradham Cherry and A. V. Rangam, for the respondent No. l (in C. A. No. 389/64).

A. V. Viswanatha Sartri, and R. Gopalakrislman, for the respondent No. 2 (in C. A. No. 389/64) and appellant (in C. A.

No. 69/65).

The Judgment of the Court was delivered by Hidayatullah, J.

In village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu.

The former is 28.90 acres and bears survey No. 45 (the old survey No. was 33 and the area 28. 75 acres).

The extent of the area in kanieas is 21-9. The other block is Survey No. 78, area 20.88 acres (the old Survey No. was JOO and the area 20.53 acres).

The extent of the area in kanies is 17-10.

These lands were originally situated in village Managiri and the lands were manyam lands, that is to say, lands held at a low assessment or altogether free in consideration of services.

It is now clear from the record and indeed it is admitted on all hands that they were the subject of an i11am granted in ancient times by the Rulers and that they were held for the performance of puja in Sri Meenakshi S1mdare"''arnl Devasthanam, Madurai.

In 1948 the Revenue

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R. c. MISSION v. MADRAS (Hidayatullah, .'.) 285

A Divisional Officer, Madurai,' held, after enquiry, that the inam consisted of both melwaram and kudiwaram and as the inmrr lands had been alienated the inam was liable to be resumed. His order was passed on April 9, 1948 and purported to be under s. 44B of the Madras Hindu Religious Endowments Act, 1926 (Madras

Act 2 of 1927). The inam lands were resumed and regranted to the Devasthanam.

At that time the lands were in the possession of the Roman Catholic Mission of St. Mary's Church, Madurai, and were so held by the Mission since October, 1894.

Against the order of the Revenue Divisional Officer the Mission appealed to the District Collector under s. 44B( 4) of the Act.

The appeal was dismissed on March 13, 1949.

The District Collector also held that the inam comprised both the Warams.

The Roman Catholic Mission thereupon instituted a suit in the court of the Subordinate Judge, Madurai unde~ s. 44B(2) (d) of the Act for a declaration that the inam consisted only of the me/waram.

The suit was later withdrawn by the District Judge to his own file and it was registered as 0. S. I of 1954. The Mission also instituted another suit in the Court of the Subordinate Judge Madurai, which was also withdrawn by the District Judge

to his file and was registered as 0. S: 2 of 1954.

The second suit was a mere general one.

It also sought the declaration which was the subject of O.S. 1 of 1954 and it questioned both the right to resume the ]ands as well as the resumption which was ordered

by the revenue courts.

In that suit the Mission contended •hat the particular inam was outside the scope of s. 44B of the Madras Act 2 of 1927 as it was a personal inam and not liable to resumption under that section and that the section itself was ultra vires

the Provincial Legislature.

The Province of Madras (now the State of Madras) and Sri Meenakshi Sundareswaral Devasthanam, Madurai were made defendants.

The District Judge dismissed 0. S. No. 1 of 1954, holding that the inam consisted of both the warams. In 0. S. 2 of 1954 the same finding was repeated and it was further held that the order of resumption was invalid and without jurisdiction since the inams in question were personal inams and did not come within the purview of s. 44B.

The District Judge granted a declara•ion to that effect and also issued an injunction against the Deva, thanam which had .not taken possession of the land till then.

Against the decision in 0. S. 1 of 1954 the Mission appealed and H against the decision in 0. S. 2 of 1954 the Devasthanam and th~ State of Madras filed anneals.

A. S. 734 of 1954 was filed bv the Roman Catholic Mission against the decision in 0. S. 1 of 1954

SUPREME COURT

REPORTS

(1966] 3 S.C.R.

and A. S. 773 and 787 of 1954 were filed -in 0. S. 2 of 1954 by A the State of Madras and Sri Meenakshi Sundareswaral, etc. Dev~ thanam, respectively. The High Court decided all the three appeals on December 14, 1959 pronouncing a separate judgment in A. S. 7 34 of 1954 and disposing of the other two appeals by a commoa •' judgment.

The finding that both the irarams were the subject of the ifli11tl was reversed by the High Court and 0. S. l of 1954 was decreed.

The finding that the inams were personal and, therefore, not liable to be resumed was reversed and 0. S. 2 of 1954 was ordered to be dismissed except for the modification that the inam was held to be of the melwaram only, which was the sole decision in the <>!her suit.

The lligh Court repelled all contentions about the ultra iires nature of s. 44B.

The High Court certified both the appeals as fit for appeal to this Coon and this appeal and Civil Appeal 69 of 1965 (Sri Meenakshi Sundareswaral, etc. Devasthanam, through its Executive Officer v. The Roman Catholic Mission and two others) have been filed.

This appeal relates to 0. S. 2 of 1954 and is filed by the Roman Catholic Mission with the State of Madras and the Devasthanam as the respondents.

The companion appeal is by the Devasthanam and the answering mpon- <lent is the Roman Catholic Mission.

This judgment will dispose of the two appeals.

Before we mention the matters in controversy in this appeal, we shall give an outline of the transfers by which the Roman Catholic Mission came to be possessed of the lands.

It does not appear to have been seriously questioned at any time that these fonds originally belonged to certain Mahomedans as proprietors.

It appears, however, (as we shall see presently) that the land F itself wa~ not subjected to any grant but that the thurva, that is, the rent paid in money, alone was the subject of the grant. Althougfi the right in respect of the concession in theerva was made out in the names of the Bhattars who were the Archakas of the Devasthanam, both the concession as well as the land were subjected to alienations.

Even before May 12, 1861 half of Melapappa- G .pathu was purchased by one Krishnaswamy Chettiar, son of Andiappa Chettiar, and the otheihalf was purchaed by him on May 1, 1861.

Similarly, Krishnaswami Chettiar had purchased a half of Keelapappapathu from the original proprietors.

On January 4, 1863 one half share in Melapappapathu was ur- H chased by one Chockalingam Pillai from Krishnaswamy Chettiar.

He also purchased one half of Krishnaswamy Chettiar's part of l\i:elapappapathu, for the benefit of one Muthuramalingam

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R. c. MISSION v. MADRAS (Hidayatullah, !.) 287

A Pillai.

In October 1864 Chockalingam granted a formal release in favour of Muthuramalingam.

The other half of Keelapappapathu, which continued with the original proprietors was sold by them to Krishnaswamy Chettiar (less one kani) on July 18, 1867.

On June 25, 1870 Muthuramalingam Pillai executed a usufructuary mortgage of a part of the land released in his favour, to one V airavalingam Pillai son of Muthuramalingam Pillai.

It is not clear whether he was his own son but it is not relevant to inquire.

On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar.

The mortgage of June 25, 1870 was paid off and Krishnaswamy redeemed the property on September 11, 1872. This left out from Krishnaswamy Chettiar's ownership one Kani of land which the original proprietors still held. On June 17, 1872, Krishnaswamy Chettiar purchased that land and in this way he became owner of all the lands comprised in these two appeals.

Krishnaswamy executed a release and sale deed in favour of Andiappa Chettiar of all the lands and it appears that Andiappa Chettiar was the beneficiary of the purchases and thus the real owner.

On October 20, 1894, the Roman Catholic Mission purchased for Rs. 1,500 and Rs. 6,500 the greater part of Malapappapathu.

E The remaining portion of this block and the Keelapappapathu block was purchased by one Anthonimuthu and when he set up his own title the Mission sued him and obtained a decree in

0. S. 45 of 1895 from the Sub-Court, Madurai West.

The Roman Catholic Mission has thus been in possession of both the blocks F from the last century.

We shall now consider the contentions in the two appeals.

The High Court and the Ditrict Judge have differed on two aspects of this case.

Both the aspects are connected with the natnre of the inam in dispute.

The first is whether the inam was of the Melwaram alone or comprised both the warams and the second is whether the inam was a personal inam which could not be resumed or one granted for the service of the temple, which could be resumed when there was an alienation and the service was stopped.

On the question of the validity of s. 44B of the Madras Hindu Religious Endowments Act, 1926, the District H Judge found it unnecessary to express any opinion in view of his decision on the nature of the inam which he held to be personal and not liable to resumption, but the High Court considered the question and held the provision to be valid.

In these appeals

SUPR!!ME COURT

REPORTS

(1966] 3 S.C.R.

these three points were mainly argued, along with a claim of A adverse possession which the Roman Catholic Mission had set up.

We shall begin by considering the nature of the inam-lirst from the point of view, whether it comprised both the warams and then from the point of view whether it was a grant to the temple or a grant for an office to be remunerated by the use of land or a grant of land burdened with service. We shall next consider the B arguments on the basis of which s. 448 is said to be ultra viri', f and void.

Lastly, we shall consider the question of adverse possession.

As there is no document recording the grant of inam and its conditions, one has to tum to a number of documents from which the High Court and the court below have drawn opposite conclusions regarding what was included in the inam.

There is, of course, no dispute that the inam must have comprised the melwaram at least.

That it must have done in any event.

Thus

the sole question is whether it comprised the kudiwaram also. In 0 reaching the conclusion that both warams were included, the District Judge took into consideration certified copies of certain

leaes from the record of an old case 0. S. No. 124 C'f 1944 of the Court of Subordinate Judge, Madurai.

These documents are Exts. B-4, 5, 6 and A-68, 69 and 77.

Ex. B-4 is a karalnama

(agreement) executed for the fasli years 1348 and 1349 by which E the lessees undertook to hand over I /3 share of the produce as melwaram and to retain 2/3 share as kudiwaram from the lands leased out of Keelapappapathu.

Ex. B-5 is another lease for cultivating the whole of Keelapappapathu nanja (wet) lands.

Ex.

B-6 is a muchi/ika in respect of nanja lands in Keelapappapath11 by which lessee undertook to pay half produce as melwaram and to retain the other half as kudiwaram.

These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies.

The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence.

The High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that the inam comprised the kudiwaram also.

Ex. A-3 is an extract from the village account of Managiri village, Mandakulam Taluk relating to inams.

It is for the years 1802- 1803.

The lands are sufficiently identified with the suit lands by the area. The lands were described as Ste/ather inam Poruppa ff manyam, conducted for Meenakshi Sunderashwaral temple.

The poruppu being a low or qoit rent according to the 5th Report

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R. C. MISSION v. MADRAS (Hidayatul!ilh, !.) l:89'

A p; 765 we get an indication as to what the inam comprised. The

account shows that from the total assessment of 96 Pons 0 fanoms and 15 thuddus, the poruppu was only 19 Pons 2 fanoms imd 3 thuddus.

Again in Ex. A-5, which is an extract of the Inam Account of Manigiri village of 1217 fasli i.e., five years later, the heading was Inam Enquiry Mauje (village) Manigiri".

Now the word Mauje is used in respect of villages in which there are cdtivators owning cultivable lands.

This has been so held for a long •

time. [See Venkata Sastrulu v. Sitharamadu,(') per Sadasiva Iyer, J. arid Sethayya v. Somayajulu.]( 2 ) In the remarks colu!llln,

the poruppu amount payable is stated and it almost corresponds to the poruppu earlier mentioned, and there is a further men1fon of the service of the temple.

The pattas exhibits A-6 to A-~: of the years 1856, 1857 and 1860 also speak of sournadayam manibam poruppu which is revenue payable in money at a concess'1on.

The inamdars did not themselves claim in the Inam enquiry nny-· thing more than the melwaram rights and in Exts. A-10 and A 11, which are the lnam statements ( 1862) and the Inam Fair Register D dated September 25, 1863. the Sta/athnr Pnruppu Manibam is again mentioned and the Inam were registered in the name; of Bhattars as the Sthaniks of the temple .

The only document in which a contrary note was struck was. the othi-deed (mortgage) Ex. A-64 of 1876 by which Mutbu Meenakshi had mortgaged her Melwaram interest in half of the inam for 20 years in favour of Krishnaswamy Chettiar. Muthu Meenakshiammal was the wife of Vikramapandia Battar the sthaneekam of the Devasthanam. This concerned both Melapappapathu and Keelapappapathu and the moragagee undertook to pay the poruppu. In describing the property it was stated that the m.elwaram and kudiwaram rights were in the mortgagee's po1session.

This probably represented the true state of affairs because Krishnaswamy Chettiar was slowly acquiring through the years the lands as well as the inam.

A similar statement was mad•: by Krishnaswamy Chettiar in Ex. A-42 but it does not advance the case further.

It is obvious that Krishnaswamy Chettiar had already acquired not only the melawaram out also the kudiwaram.

Neither docuinent really showed that the inam comprised the k udiwaram as well.

There is no other evidence of the inclusio11 of kudiwaram in the inam and the dealings were with melwaram which alone the inamdars claimed at the lnam Enquiry.

R Although the matter has been discussed carefully by the High Court, we have re-examined the material and set down here-

(!)I.LR. 38 Mad. 891.

(2) I.LR. 52 Mad~ 453, 463. (P.C.)

:290

SUPREME

COURT

REPORTS

( 1966] 3 >.C.R.

what we consider to be adequate reasons for holding that there is no proof that the kudiwaram was the subject of the inam.

All admissible matter points to the conclusion that the m.elwaram .alone was the subject of the grant. The appellant in Civil Appeal No. 69 of 1965 took us through the two judgments and pressed upon us the view of the trial Judge. We have considered the two views and are of opinion that the I ligh Court has reached the right conclusion on the admissible evidence on record.

Civil Appeal No. 69 of 1965 must thus fail and this finding by u' will be read in the other appeal also.

We shall now consider whether the inam was a per.; onal inam <Jr for the service of the Devasthanam.

The High Court has relied upon a decision of the Madras High Court in Rasa Kondon v. lanaki Ammal.(') lnams are of various kinds.

Thev are classified on the basis of concession in land revenue, th; t i; to say, whether the whole of the land revenue is remitted or a part, or whether the land is held subject to a payment of money.

Where the whole of the land revenuo is remitted the inam is known by names such as Sarva lnam, Sarva ma11yam, Sarva d11mbala or darobust inam.

When the right to the soil is not included in :he inam it is known according to the share which was free such as Ard/la manyam (half), chaturbhaf; am ( l /4) etc. The third kind

o! inam comprised payment of a quit rent called the poruppu.

The question is whether this inam in which only a poru11pu wns payable comprised the right to the soil.

In Venkata v. Sltaramadu(') it was held by the Privy Council that there was no presumption in law that an inam grant, even if mack to a Brahmin, did not include the kudiwaram.

We have borne this observation in mind but we hold that the evidence in this case points to the fact that the inam comprised only the melll'aram. 1t was thus an iJJam where the land was held subject to payment of an amount as quit rent.

It was granted to the archaka• and was recorded in their name.

That they alienated the lands is without any -doubt and the question is whether the inam could be resumed or not.

Section 44-B inserted by the Madras Hindu Religious Endowment (Amendment) Act 1934 (Madras Act XI of 1934) in the parent Act II of 1927 and further amended hy the Amendment Act X of 1946 reads :

"44-B. (I) Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the support or maintenance of a math or temple or for the

(I) (1950} 2 M.l..J. 177.

(2) I.l.R. 38 Mad. SJI

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R. c. MISSION v. MADRAS (Hidayatullah, J:)

29 L

performance of a charity or service connected therewith and made, confirmed or recognized by the British Government, shall be null and void ..

Explanation.-

(2) (a) The Collector may, on liis own motion,. or on the application of the trustee of the math or temple or of the Assistant Commissioner or of the Board or of any person having interest in the math or temple who has obtained the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely :-

(i) that the holder of such inam or part has made an exchange, gift, sale or mortgage of the same or any portion thereof or has granted a lease of the same or any portion thereof for a term exceeding five years, or

(ii) that the holder of such inam or part lias failed' to perform or make the necessary arrangements for performing, in accordance with the custom or usage of such math or temple, the charity or service for performing which the inam had been made, confirmed or recognized by the British Government, or any part of the said charity or service, as the case may be, or

(iii) that the math or temple has ceased to exist or the charity or service in question has in any way become impossible of performance.

When passing an order under this clause, the Collector shall determine whether such inam or the inam

comprising such part, as the case may be, is a grant of both the melvaram and the kudivaram or only of the melvaram.

( f) Where any inam or part of an inam is resumed under this section, the Collector or the District Collector as the case may be, shall by order, re-grant such inam or part- ( i) as an endowment to tlie math or temple concerned, or

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SUPREMI! COURT

REPORTS [1966] J s.c.R.

Sub-section (I) of s. 44-B was the subject of interpretation in P. B. Bheemsena Rao v. Sirigiri Paddayella Reddi an4 .others. ( 1 ) The question then was whether s. 44-B (I) covered a grant of land burdened with service as against a grant for an -0ffice to be remunerated by the use of land but resumable when the senicc was not performed.

In dealing with these two distinct aspects of an inam grant, Gajendragadkar J. (as he then was) and Wanchoo J. point out that the former is not a case of a service grant proper and such a grant can only be resumed if the conditions of the grant contemplate a resumption when the service is not performed.

The other is a proper service inam and unless service is performed resumption is inevitable.

They also point out that prior to the enactment of s. 44-B the inams were governed by the Board's Standing Orders : rule 54.

That laid a duty on Revenue Officers to see that inams confirmed by the Inam Commissioner as being for the service of some religious or charitable institution were not enjoyed without the performance of service.

Grants were liable to be resumed when the whole or part of the land granted had been alienated or lost.

Provision was, however, made to deal wilh such cases in two ways.

Either there was resumption or the grantee was left in possession and the full assessment being imposed on him, the difference was made available to the particular charity or institution for the service of which the grant was made.

Therefore, in the case of personal inams burdened with service, when the service was not being performed. whether there was an alienation or not, the full as<cssment being dmanded, the personal portion was left to the grantee bu1 the com:es, ional portion was given to the charity concerned.

After the enactment of s. 44-B the Board's Standing Order Ruk: 54 was amended and inams for religious and charitable purposes were classified : ( i) inams granted for the performance of a charity

or service connected with a Hindu math or temple: and

(ii) inams not falling under c13ss ( i).

The first two kinds were governed by the provisions of the Madras Hindu Religious Endowments Act and the second by the Board's Standing Orders Ruic 54.

Taking this history into account it is pointed out that s. 44-B (I), in spite of the width of its language is only open to a restricted interpretation and includes in resumable inams those in which tJ1e whole of the income or a very great pan is required for the service and not large personal inams with

(!) [1962] t S.C.R. 339.

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R. c. MISSION v. MADRAS (Hidayatullah, J.) ~93

a small or slight service.

On the other hand grant of land made to an office-holder to remunerate him for service is always resumable if he ceases to hold office or to perform service.

The rival contentions in this case may now be considered.

The Roman Catholic Mission submits that these are personal inams and they do not come within s. 44-B.

This submission was accepted bythe District Judge.

According to him, the inam was made to the ancestor of the persons named in the Inam Fair Register, subject to the obligation to perform service in the temple.

The inam is thus held not to be attached to any office, archaks or other; nor is the income remuneration for that office.

It is urged that such an inam is alienable, and if the service continues, the alienee cannot be distributed and can enjoy the inam. The High Court accepted the contention of the Devasthanam that the inam

wa., !!ranted for the office of the archakas and for service a.s such In other words the inam is said to be attached to the office and thus incapable of alienation and if alienated liable to resumption.

In deciding which it is, certain documents throw a flood of light.

In Ex. A-3 to which we have already referred, this inam is called Devedayam inam and again as stalethar inam porupott manyam "conducted for Meenakshi Sundareshwaral Temple, thaatie Devasthanam". The inam is entered in the names of Bhattars.

The word Devadayam ordinarily is used in revenue records to describe lands attached to a temple and in the dictionaries the meaning is 'lands or allowances for the support of a temple'.

The expression sthalather poruppu manyam or shortly slhala manyam means land held at a low or quit rent. The word poruppu also means quit rent.

Thus this document shows that the Bhattars were granted these lands in inam for the performance of service of the temple but not granted as inam personal to the grantee.

The High Court rightly pointed out that the description in the same document "Shanmugasundra Bhattar Mritunjaya Bhattar inam" was merely a description of the inam with reference to the inamdars, but could not in the circumstances mean that the inam was their personal inam.

Further Ex. A 11, the Inam Fair Register of 1863, does not mention the name of the original grantee which it would have if the grant was personal.

The names of the two Bhattars are entered but as athanikama of Pagoda Meenakshi Sundareshwaral and the inam is described as Devadayam for the archakal service, that is to say, of puja parichakaram in the temple and it is stated that the Inam Commissioner confirmed the inam.

SUPREME COURT

REPORTS

[1966] 3 S.C.R.

Now in a series of cases, the Inam Enquiry has been held by the Judicial Committee to be a landmark. In Arunachalam

Chetty and Orhers v. Venkatacha/apathi Guruswamigal(') the utmost importance was attached to the Inam Fair Register, the preparation of which was described as a great act of State.

Jn Narayan Bhagwantrao Gosavi Ba/ajiwa/a v.

Gopa/ Vinayak Gosavi(') this Court held, accepting the finding of the Inam Commission, in the absence of other evidence, that the grant was to a

Devasthan and constituted a Dcvasthan Inam.

Mr. Ramachandra Aiyer attempted to prove to us that the expression 'act of state' in the Privy Council judgment was a misuse of the term and cited some cases where the act of state has been discussed.

We do not find it necessary to refer to them.

The term act of state docs not always mean a sovereign act against an alien which is neither grounded in law nor does it pretend to be so.

The term means more than that because it has many meanings.

In State of Saurashtra v.

Memon l/aji Ismail llaji(') other meanings of this term arc given.

Here it indicates an act in respect of which there was an official declaration.

The Inam Fair Rcgbter incorporated an official declaration which was the result of detailed inquiries.

All evidence collected in respect of each inam was carefully sifted and considered before any conclusion was reached or declared.

In the absence of positive and proper evidence to the contrary such declaration must possess supreme importance.

It is significant that the Roman Catholic Mission in the plaint as it was originally filed had said that the office of the archaka was remunerated by the income of lands in dispute and by the income from other sources.

However, when the decision sub nom. P. V.

Bheemsena Rao v. Y el/a Reddi of the High Court of Madras was reported in ( 1954) I M.L.J. 384 it pleaded by an amendment that the inam was a personal inam.

As the High Court in the judgment under appeal points out, there was litigation between the Bhattars am! the Roman Catholic Mission and the evidence we have discussed, must have been known to the Mission when the original plaint was filed.

The fact that their pica was that this was an inam for remunerating the office of the archakas represented a true reading of these documents.

The Inam Fair Register speaks of the inam as Devadayam and reads it as permam:nt.

If the inam was to a Brahmin personally it would have been shown as 'Brahmadayam' and 'hereditary'. ·-----

(1) !..R. 46 I.A. 204.

(2) [t96li! t S.C.R. 77J

13) [196f, J I S.C.R. 537, 543.

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Finally in Ex. A-10, which is a statement of Muthumeenak-hi ammal who was in enjoyment of the inam in 1863, it is stated:

" Particulars as to how the inam was obtained and the abstract of the deeds. (7) Nenjakani 39 During the time of our predecessors the said Manibam was allotted by the . previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed .

We are doing archakam (pooja) and cooking in the aforesaid temple." This clearly shows that the inam was always considered as remune- E ration for archaka service of the temple and on its alienation it is liable to resumption under s. 44-B. Even before the incorporation of s. 44-B such an inam could have been resumed by Government, under Standing Order of the Board of Revenue Rule 54(1) (see Anjanayalu v. Sri Venugopa/a Rice Mill Ltd.('). Mr. Ram

F chandra Aiyar even attempted to question the correctness of this case, which has been followed consistently.

The finding of the learned District Judge, Madurai, that this was a personal inam to an individual was erroneous and the High Court was right in reversing it.

Mr. Ramchandra Aiyer next contends that s. 44-B was void G when the legislature purported to enact it, and, therefore, no action could be taken under it.

This argument is many faceted and often it is obscure.

Shortly stated, the argument is this : 'The inam was confirmed on September 25, 1863 under title deed !354 by the Inam Commissioner. The alienations of the rights, whatever they be, were before that date. Prior to the Inam Com- H mission there was no prohibition and the .confirmation could not affect prior alienations.

As the inam deeds were validated by an

(ll I.L.R. 45 Mad. 620 (F.B.) at 624. 10 Sup. CI/66-6

296 SUPllEMB COUllT J.EPOllTS

(1966] 3 S.C.R.

Act of the British Parliament (32 and 33 Viet. c. 29) the right to forfeit the lnam concession or to resume it could be exercised by the Crown only as the inam became a contract between the Secretary of State for India and the inam-holder.

Section 44-B

is said to be void because it confiicted with this position and enabled the Revenue Officers to order resumption.

The resumption or forfeiture itself was said to be ineffective without the order B either of the Governor General or Governor in exercise of his individual judgment and also because the right to resume the inam was

said to be extinguished by prescription.

The resumption was characterised as a forfeiture and was said to be void under s. 299 of the Government of India Act, 193!! and Arts. 31 and 296 of the Constitution. Madras Hindu Religious and Charitable Endow- C ments Act (XIX of 1951) which by s. 35, reenacts s. 44-B was further said to be void as, it was said, it seeks to protect only Hindu religious institutions and not those belonging to other religions.

The power of the provincial legislature to enact s. 44-B in 1934 or 1946 was also challenged under the Government of India Act 1915 and the Government of India Act, 1935, respectively.

The District Judge did not consider any of these arguments except the last, because he decided the issue of resumption against the Devasthanam and the State Government.

The District Judge decided that the section was validly enacted by the provincial legislature.

The District Judge, however, mentioned in the judgment all the arguments which were raised before him and they were the arguments which we have set down above. However, in the High Court most of these arguments do not appear to have been advanced because the High Court judgment is silent about them.

We intimated Mr. Ramchandra Aiyer that we would not allow any argument to be advanced which the High Court was not invited to consider.

In the High Court the validity of ~. 44-B of the Madras Act and s. 35 of the Act of 1951 was considered from the point of view of the powers of the Provincial legislature when the former was enacted and from the angle of the Constitution in respect of both.

We shall consider these arguments mainly from the same two standpoints.

The powers of the Provincial legislatures under the Government of India Act, 1915 were determined under the Devolution Rules made bv the Governor General in Council under ss. 45-A and 129-A of the Government of India Act. By these rules a dassification of subjects was made for the purpose of distinguishing the functions of the local governments and local lcgislatnres <>f Governors' provinces from the functions of the Governor

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R. C. MISSION v. MADRAS (Hidoyatu/&zh, J.) 297

A General in Council and the Indian Legislature. The Devolution Rules set out in two lists the subjects so classified and any matter in the list of provincial subjects set out in Part II of Schedule I was excluded from any central subject.

Under rule 4 of these rules, if any doubt arose as to whether a particular matter did or did not relate to a provincial subject, the Governor General in B Council was to decide whether the matter did or did not so relate and his decision was final.

At this distance of time, it is somewhat inept for a Court, without a proper inquiry, to decide whether the powers of the Provincial legislature did or did not extend to the making of c s; 44-B.

For aught we know, this identical question might have been raised and the decision of the Governor General in Council obtained. That would be end of the matter.

No one seems to have challenged the section although numerous inams were resumed under that section. However, considering the matter in principle we do not feel any doubt about the competence of. the D Provincial legislature.

As the District Judge and the High Court have rightly pointed out, the powers of the Provincial legislatures extended over land tenures, land revenue administration and religious and charitable endowments.

A concatenation of these several powers must obviously furnish adequate scope for undertaking the most comprehensive legislation on the subject of inams E in general and inams connected with religious and charitable endowments in particular. Section 44-B was thus fully within the competence of the Provincial legislature.

The next question which was considered by the High Court was whether resuming and regranting the inam to a Hindu temple, offended the Constitution.

The High Court did not accept this submission. It is obvious that by the transfer of the inam the temple was deprived of a benefit and the transferee had no right to hold that benefit. What was done was to restore to the temple what it had lost and this was not putting a denominational religious institution at an advantage.

Once we hold that the Provincial legislature had competence to enact the impugned section, it would follow that the section would be sustained by s. 292 of the Government of India Act,

1935. Indeed, the power of the Provincial legislature under the Act of 1935 was no whit less than that of the legislature which H enacted the section.

Any amendment of the section in 1946 would have clear authority even under the Act of 1935. And the some may be said of the Madras Hindu Religious and Charitable Endowments Act, 1951 vi.~ a vis the Constitution.

2Q8

SUPREME COURT

REPORTS

(1966] 3 S.C.R.

The theory that contracts between the Secretary of State for India and the inam-holders came into existence after the passing of 32 & 33 Viet. c. 29 and that this took the matter out of the powers conferred by the Devoluiion Rules upon the Provincial Legislatures, is equally fallacious.

What had really happened was this.

In 1858, when the Government of the East India Company, which held the territories in trust from the Crown, came to an end, the British Parliament passed "An Act for the better Government of India''.

We arc not concerned with its provisions.

A year later another Act was passed to amend the Act of 1858.

It provided that any deed, contract or other instrument for the purpose of disposal of real estate in India, vested in Her Majesty under the Act of 1858 must be expressed to be executed as on behalf of the Secretary of State for India or by order of the Governor General in Council or the Governor of Fort Saint George or of Bombay in Council.

Although this statute was there, the title deeds which were issued by the Inam Commissioner were not expressed to be executed by order of the Governor in D Council and purported to have been executed on beha:f of the Governor in Council instead of on behalf of the Secretary of State for India in Council.

This created a doubt about the validity of the title created under them.

By the enactment of 32 and 33 Viet. c. 29 the title deeds for inam lands were validated.

They were to be read and to have the same effect as if they were executed by order of the Governor in Council and on behalf of the Secretary of State for India in Council.

In this way the flaw in the numerous grants was removed without having to reissue fresh title deeds.

This legislation did not create a contract.

It only validated the old title deeds and no more.

To read into the grants by which irurms were created, a contract which was inviolable exc..-pt by resumption by the Crown is to read into the Acts of British Parliament something which is not there.

Like any other grant which is resumable on breach of its conditions, these inams were resumable according to their terms and conditions.

There was nothing in the inam title-deeds or the.se statute.s which inhibited the Provincial legislature from enacting s.

44-B under its undoubted powers or the Collector from resuming the inam on breach of its conditions under the power granted by the section.

The other arguments on the subject of the validity of s. 44-B need not detain us.

They proceed on obliterating the difference between resumption of an inam for breach of its terms and orfei turr: which is a kind of punishment annexed by law to some 11legal

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R. c. MISSION v. MADRAS (Hidayatul!ah, J.) 299

act or negligence, in the owner or possessor of land.

We are not here concerned with forfeiture but with the resumption of a concession granted by Government, which is occasioned by the alienation of the concession to a stranger.

Any argument based OD forfeiture is entirely out of place.

Similarly, the arguments based on bona vacantia or deprivation of property sufficiently indicated by the i'eliance OD the articles of the constitution mentioned earlier by us cannot help, partly because they are irrelevant and mainly because no such arguments appear to have been advanced in the High Court.

We accordingly reject the contention tha.t s. 44-B or the resumption under it were invalid.

There remains only the question of adverse possession. In Boddapalli Jogannadham and anr. v. Secretary of State(') it was held that there is no period of limitation prescribed by any Jaw within which alone Government should exercise its prerogative of imposing assessment on land liable to be assessed with public revenue.

This case was followed in Subramaniam Chettiar v.

 D Secretai;• of Stdte(').

As the resumption was of the melwaram only these rulings apply.

Mr. Ramchandra Aiyer admitted that he had no authority to the contrary.

This point has no force.

This appeal (Civil Appeal 389 of 1964) must also fail.

The two appeals will accordingly be dismissed with costs.

E There will be a right to set off the costs.

(l) LL.R. 27 Mad. 16.

(2) ?.8 M.L.J. 392.

Appeals dlsmisd.

TIIE ROMAN CATHOLIC MISSION

STATE OF MADRAS AND ANOTHER

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

M. HIDAYATULLAH

V. RAMASWAMI

P. SATYANARAYANA RAJU, JJ.

Madras Hindu Religious Endawments Act

s. 44

s. 44B

s. 44B

s. 42B

s. 292

Section 44B

s. 35

[1966) 3 S.C.R.

1

s. 448

S. G. Ramchandra Iyer

B. Dadachanji

C. Mathur

Ravinder Narain

mradham Cherry

A. V. Rangam

A. V. Viswanatha Sartri

R. Gopalakrislman

Hidayatullah

Vandiyur

Madurai Taluk

Melapappathu

Keelapappathu

Managiri

Madurai

April 9, 1948

s. 44B

Devasthanam

s. 44B( 4)

March 13, 1949

The appeal was dismissed on March 13, 1949.

s. 44B(2)

S. 1

s. 44B

Madras

Meenakshi Sundareswaral Devasthanam

S. 2

s. 44B

Deva

S. 1

S. 2

Devasthanam

State of Madras

S. 734

S. 1

S. 773 and 787

S. 2

Meenakshi Sundareswaral

December 14, 1959

S. 7

S. 2

s. 44B

S. 2

Althougfi

May 12, 1861

Krishnaswamy

Andiappa Chettiar

May 1, 1861

Krishnaswami Chettiar

January 4, 1863

Melapappapathu

Chockalingam Pillai

Krishnaswamy Chettiar

Muthuramalingam

Chockalingam

July 18, 1867

June 25, 1870

Muthuramalingam Pillai

V airavalingam Pillai

December 14; 1871

Adaikalathammal

Muthuswami Pillai

Melapappapathu

Keelapappapathu

September 11, 1872

June 17, 1872

October 20, 1894

Malapappapathu

6,500 the greater part of Malapappapathu.

Anthonimuthu

S. 45

Sub-Court, Madurai West

s. 44B

s. 448

Court of Subordinate Judge, Madurai

Keelapappapathu

Managiri village

Mandakulam Taluk

September 25, 1863

Pnruppu Manibam

Bhattars

Mutbu Meenakshi

Muthu Meenakshiammal

Vikramapandia Battar

Madras High Court

Section 44

Madras Act XI of 1934

Amendment Act X of 1946

British Government

s. 44

s. 44

Gajendragadkar

Wanchoo

s. 44

s. 44

Religious Endowments Act

s. 44

s. 44

Inam Commission

Ramachandra Aiyer

Muthumeenak-hi ammal

Meenakshi Sundareswaral

Muthu Meenakshi Ammal

Ponnammal

Kalyana Battar

Bhinna Subba Battar

Villu Battar alias Shunmuga Sundara Battar

s. 44

s. 44

Standing Order of the Board of Revenue Rule

Ram

F chandra Aiyar

Ramchandra Aiyer

s. 44

Standing Order of the Board of Revenue Rule

Standing Order of the Board of Revenue Rule

India

Section 44

s. 299

Arts. 31 and 296

s. 35

s. 44

s. 44

Government of India Act 1915

Government of India Act, 1935

s. 35

ss. 45

Schedule I

Section 44

s. 292

Government of India Act

Government of the East India Company

British Parliament

Her Majesty under the Act

Fort Saint George

Bombay

s.

44

s. 44

s. 44