Dadla Balarami Reddi vs Duvvuru Jaya Singh and Others

Umamaheswaram, J.—This appeal is brought by the trustee of Sri Kodandaramaswamy Varu Teinplo, liutchireddypalem against the judgment and decree of the Subordinate Judge of Nellore in O. S. No. 78 of 1947 decreeing the suit for recovery of ''possession of the plaint schedule lands and granting mesne profits.

Tire case of the Plaintiffs was that the suit lands were granted in inam by one Nagulapati Ven-kateswara Poundriga Yachulavani to their predeces-sors-in-tide in 1785 subject to performance of service as peons in the temple. They alleged that on 27-11-1896 Jai Singh executed a will granting a half share in favour of his daughter''s son Subbu Singh and the other half share in.favour of his daughter-in-law Ra-dhabai. The first Plaintiff is the son of Subbu Singh, 2nd Plaintiff is the son of Radbabai and the 3rd Plaintiff is the son of the 2nd Plaintiff. According to the Plaintiffs, the properties continued in their possession and enjoyment. In 1946 the 1st Plaintiff, who was performing services in the temple, was necked out and the properties were taken possession of by the Trustee.

The ease of the Trustee was that die suit lands were granted to the deity, that the 1st Plaintiff was appointed as a peon in 1927 and that the suit lands were put in his possession in lieu of wages. It was further stated that as he failed to perform services from 1945, charges were framed against him and he was dismissed from service on 1-1-1946. It was drerefore contended that the Plaintiffs were not entitled to recover possession of the suit lands.

The Subordinate Judge of Melloro held on the evidence on record that the grant was a personal grant made to the predecessors of the Plaintiffs subject to the performance of service in the temple of SrFlKodandaramaswamy Varu and that they were consequently entitled to recover possession of the suit properties. The learned Subordinate Judge also found that the order of dismissal was invalid and not binding upon the 1st Plaintiff as no notice of the enquiry was given to him. The trustee has consequently preferred the appeal to this Court.

The main question that arises for consideration in the appeal is as to the nature of the grant made to predecessors-in-title of the Plaintiffs. The Plaintiffs relied upon Ex. A-3I, a certified copy of the grant made in favour of Venkalacharyulu by Raja Venkatoswarlu Poundreekayajulu Vara. The document recites that it was granted for the maintenance of Acharyapurushas and others who had been rendering Vedaparayanam and other kaiukaryams in the temple of Sri Kodandaramaswami enshrined in Koda-naramapuram Agraharam otherwise known as Buchi-Teddipalem. It is clearly stated that the several persons specified in the document should get their respective lands cultivated, enjoy the produce thereof, render kainkaryam in the temple and enjoy die produce after paying die circar cist; hereditarily from son to grandson.

The grant was made in favour of all die temple .servants including the parieharakas. There is no dispute that die peon is also one of the parieharakas included in the grant. The contention of the learned advocate for the Appellant was that Ex. A-31 ought not to be relied on inasmuch as the grant, of which it purports to be a copy, was a spurious one. He further contended that the certified copy was not admissible in evidence as the Plaintiffs have not proved that the original was lost.

It appears that Ex. A-31 was obtained in the year 1914. It was filed in several proceedings in civil Courts. It was produced for the first time hi O. S. Nos. 157, 159 and 160 of 1914 on the file of the District Munsif, Nellore. It was next filed in O. S. No. 24 of 1935 on the file of the District Court, Nellore. That was a suit filed by Acharyaparushas to declare their right to certain honours in the temple of Sri Kondandaramaswamy. The trustees of die temple filed a written statement marked as Ex. A-12. In the written statement, it was stated as follows:

In about Fasli 1195, the founder Dadla Rama Reddi got an endowment of some property to die temple from one Nagulapati Rayavcnkateswara Poun-darikayaji who executed a deed of gift providing there-under that the property endowed should be enjoyed in certain proportions by all die temple servants. In the said document the Plaintiff''s family is referred to as Acharya Purushas (not stala Acharya Purushas) bound to perform the Adhyapakarn service and was allotted two Vritties as remuneration for the said .service.

Exhibit A-31 in this suit was filed as Ex. XV and it appears from the endorsement on Ex. A-31 that it was marked by consent in those proceedings. The suit was decreed and die Subordinate Judge relied upon Ex. XV filed on behalf of the trustee. The temple servants filed O. S. Nos. 34, 35, 36 of 1939-and 39 of 1940 in the District Munsif''s Court, Kavali against the Hindu Religious Endowment Board contending that they were not liable to pay contribution as the inams were granted to them personally burdened with service and were not granted to the temple. Exhibit A-31 was filed in those suits as Ex. A. The next important proceeding to be referred to is the suit filed by the Trustee against the Government in O. S. No. 306 of 1941 on the file of the District Munsif of Nellore for declaration that the suit temple was entitled to be registered as the solo proprietor of the village of Kavetipallem.

All the temple servants were impleaded as parties to the suit. Exhibit A-31 was filed as Ex. D-23 in that suit. He applied for a certified copy of the grant to the Collector and the Collector sent a reply to him on 27-6-1938 stating that the original was not available. P. W. 1 stated in the deposition that the original of Exhibit A-31 was not available in the Collector''s Office. In the course of the cross-examination, he stated that the original was not summoned. The evidence of P. W. 1 was accepted by the learned Subordinate Judge and he came to the conclusion that the original of Ex. A-31 was not available in the Collector''s office.

He therefore admitted the certified copy of Ex. A-31 in evidence. Section 65(c) of the Indian Evidence Act: provides that secondary evidence is admissible when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time. The evidence of P. W. 1 as also Exs. P-8 and P-9 marked in O. S. No. 306 of 1941 on the file of the District Munsif, Nellore clearly show that the original of Ex, A-31 is not now available in the Collector''s office. There is, therefore, no force in the contention of Sri Munikannayya that the; certified copy cannot be admitted in evidence.

The Privy Council case relied on by the learned advocate for the Appellant in Krishna Kishori v. Kishori Lal Roy, ILR 14 Cal 486 has no application to the facts of the present case. Sri B. Peacock, in delivering the judgment of the judicial Committee, held at page 491 that if the loss or destruction of the document is not proved, secondary evidence is not admissible under CI. (c) of Section 65 of the Evidence Act. lie further held that the copy produced in the case was not a certified copy and did not bear the certificate of any public office that it was a true copy of a document contained in the office. A.s already pointed out above, it is clearly proved in this case that the original of Ex. A-31 is not available in the Collectorate as spoken to by P. W. 1. The copy produced is a certified copy &it appears to have been compared with the original on 28-4-1914. We have, therefore, no hesitation in overruling the collection that the certified copy is not admissible in evidence.

(i) It was next contended by Sri ivtuiiikaunayyu that was not proved that the certified copy is that of the original grant and it might be a copy of a copy. It does not appear from Ex. A-31 that it is a copy of a copy. If really, the copy was made from a copy, it would have been expressly noted in the copy to that effect. We find from Ex. A-IS that when a copy is issued of another copy all the endorsements made in the copy are reproduced in the certified copy. We therefore do not agree with the suggestion that the certified copy might be a copy of another copy in the Collectorate.

The important question that has to be decided is whether the original grant, of which Ex. A-31 purports to be a copy was a genuine document or a spurious one introduced into the Collectorate by interested parties. For the purpose of deciding this question it is necessary to refer to the documentary evidence in the case. K appears that on 25-11-1933 a kararnama was entered into between the Kapus and Karnams of Pondhcdu and the Srotriemdars of Kavetipalem, The dispute seems to, have arisen between the villages with regard to the "beedupalem situated on die northern and western sides, of Penchedu village.

If really tho suit property and the village of Kavetipalem belonged to the deity as contended by the Appellant, the Trustee of the temple would have entered into the kararnama and not the srotriemdars or the temple servants of Kavetipalem. Some of the temple servants have signed the kararnama. Tho /Boundary Samakaya dated 2-3-10:54 is marked as Ex. %-21. The dispute between the Kapus and Karnams of Penchedu and the srotriemdars of kavetipalem was fettled in accordance with the terms thereof. When disputes arose between the various temple servants to the enjoyment of the suit lands, there was reference to arbitration. The award is marked as A-24. All the lands in the srouicm were divided as between the several temple servants in accordance with the shares which they were entitled to. The award is attested by Dodla Venkatarami Reddi, the father of the Appellant.

In addition to these important documents, it appears that the suit properties were being enjoyed by the Plaintiffs'' predecessors from a very long time.. Under the will executed by Jai Singh (Ex. A-l) the properties were bequeathed in favour of Radhabai & Subbu Singh. The lease deeds produced by tho Plaintiffs and marked as Exs. A-2 and A-4 conclusively prove that they were in possession and enjoyment of the suit lands. The settlement deed executed by Guduru Radhabayamma in favour of Laxmibayamma (Ex. A-3) also supports the Plaintiffs'' case that the property was treated as alienable. The case of the Defendant that the temple was in possession and enjoyment of the suit lands cannot be accepted.

The learned Advocate for the Appellant relied upon Ex. B-2 as supporting his case that the grant set up by the Plaintiffs cannot be true. Ex. 15-2 is the Inam Fair Register of Kavetipalem srotriein. In Column 2, the Inam is described as

devadayam." fu Column 8 it is stated that the Inam was granted lor reading vedas, dancing, singing, beating tomtoms, for rendering priesthood, cooking rice, holding, torches, seopting etc., in the Pegoda of Kodanda Ratnaswarni at Buchireddipalem. Column 10 is as follows:

To be so long as the service is performed.'''' In columns 11 and 12, it is stated that it is not known who granted and that there was no grant apart from the account of Fasli 1211. In column 14 the names of Sri Kodandarama Ramaswami and Addanks Veukatacharlu are entered. In columns 16 to 20, the names of the several service holders who were in. possession and enjoyment of the properties are entered. A perusal of these entries clearly shows that various proxies were attending to the duties when the service holders were not in a position to perform service. The names of minors are also entered. Dama Subbaiah and Tota Laxminarasu are entered in Columns 16 and 17 as rendering the services of peony in the pagoda. The Deputy Collector''s opinion arid the recommendation are contained in Column 21. It is as follows:

The shrotriem can be confirmed permanently, so long as the service is performed. The persons in Column 16 are of different professions. They all render their professional service in the pagoda. Some of them enjoy from before 50 years and some have got their shares of any of the persons in column 16 except as regards the share of die 18th in ebl. 16." Reference is made then in regard to the share of 1''aturu Veukataraghava Sastrulu. this widow got the services performed by one Yanadu Sastrulu on her behalf. At the end, there is a note in the following terms:

After I disposed of the above I am given to understand that the 36th also was appointed lately, the former peon'' having been dismissed. The dismissed man) did not attend.

From a careful perusal of the various entries, it docs not appear that the inam was granted to the deity. The various persons entitled to the inam are specified in Columns 16 to 20. The shares of the various persons are also mentioned in the document. There is no indication in the document that the inarm.

was granted to the temple and that the various persons were enjoying the properties in lieu of wages. It appears that the several persons mentioned in the document were treated as owners in the property subject to die performance of services in the temple of Kodandaramaswany. The argument of Sri Muni-kannayya is mainly based on the entry in column 11 wherein it is stated that it is not known who granted the Inam. Reliance is also placed on col. 12 that no grant was produced in the inam proceedings. He contends that if really Hie original grant was available, it would have been produced before the Inam Commissioner. Sri M. S. Ramachandrarao, S3 learned Advocate for the Respondents contends that this document Ex. B-2 shonld be read along with Ex. B-l, the statement made by the inamdars at the inam enquiry.

It is stated therein that on the death of Jagan-natham and his sons, Buss Singh was performing the services, that on his death Dei; Singh was discharging the duties of the peon and that as Des Singh accepted Government service, Tota Lakshminarasu was acting for him as" the peon. It is also mentioned in Ex. B-I that all the documents of title were filed before Mr. Traverse. Sri Ramachandra Rao relied upon the statement and contends that as all the documents of title including the original grant were filed before Mr. Traverse, the original of Ex. A-31 might not have been filed in the course of the inam inquiry.

There is considerable force in this contention. Even assuming that the contention of the learned Advocate for the Appellant is right, it does not follow from the decision to file the original grant before the Inam Commissioner that the grant must be a spurious one. Exs. A-20 to A-22 clearly prove that the srotriemdars were exercising absolute rights and treating themselves as the owners of the inam. It is also significant to note that in the written statement filed by the Trustee in O. S. No. 24 of 1935 on the file of the District Court, Nelloro reliance was placed on the grant of 1785. The: document Ex, A-31 was marked by common consent as Ex. XV on behalf of the Trustees.

If really the document was a spurious one, it is not likely that the Trustee would have relied upon that document as supporting his case. The conduct of the Trustees in the prior proceedings leads us to the conclusion that the original of Ex. A-31 was regarded by them as genuine. Advantage is taken of by the trustees to attack the original as not being genuine on the ground (hat it was not produced before the Inam Commissioner. Having regard to die entire oral and documentary evidence, we have no hesitation in rejecting the contention that: the original of Ex. A-31 was a fabricated one.

We arc not prepared to hold that the inam should be regarded as having been granted to the temple by the mere use of the word "devadayam'''' in Column 2. It has been held by Venkata Subba-rao J., in Srinivasa Ayyar alias Srinivasa Ayyangar Vs. The Board of Commissioners for the Hindu Religious Endowments and Others, following the Bench decision in Srirangachariar v. Pranatharthihara Chariar, 30 Ind Cas 74 :AIR 1916 Mad 331) (C), that the use of !the word "Devadayam" is not decisive as to whether it was granted to the temple or was a personal inam burdened with service. In the Full Bench decision of tine Madras High Court in Sri Mirza Raja Sri Pushavati Alakh Narayana Gajapathiraj Maharaj Manya Sultan Bahadur Garu, Rajah of Vizianagram Vs. Vuggina Appalaswami and Others, , it was held that there is no presumption whether the grant is one in lieu of wages or one burdened with service. The decision of Venkata Subbarao J. in Kandala Thiruvenkatacharlu and Others Vs. Shaik Altoo Sahib, , was approved as laying down tire correct law.

The question that we have to decide viz: as to whether the grant was one burdened with service or in lieu of wages turns upon the particular facts of each case. The evidence already referred to leads us to the conclusion that the grant was made hereditarily to the temple servants, subject, however, to the performance of the respective services in the temple of Kodandaramaswamy. There is no title deed produced by the temple that the grant was confirmed in favour of the deity. The Inam fair register Ex. B-2 also does not lead us to the inference that the grant was made to the deity. The orders alleged to have been passed appointing the 1st Plaintiff or his predecessors as peons in the temple have also not been produced we are therefore satisfied on the particular facts of the same that the grant was not made to the temple.

As already discussed above, we are satisfied that the original of Ex. A-31, was a genuine grant. The terms of Ex. A-31 clearly make out that the grant was made to the temple servants hereditarily subject, however, to the. performance of services.

Even assuming that Ex. A-31 is not admissible in evidence or that the grant is not proved to be a genuine one, we are still inclined to hold that the grant was made to the temple servants burdened with service having regard to the other documents in. the case. Exs. A-20 and A-21 clearly shows that the temple servants were in possession & enjoyment of the properties. From 1896 the predecessors of the Plaintiffs have been in possession and enjoyment of the property treating them as their own. It also appears from Exs. A-30 and A-34 that the temple servants were alienating their shares. As pointed out by the Subordinate Judge in paragraph 18 of the judgment, it is also in evidence that tlio rent value accounts are not sent by the temple in respect of Kavetipalem.'' These facts establish beyond doubt that the inam was one granted to the temple servants subject to the performance of services in the temple of Kodandaramaswamy.

It is unnecessary to refer to the decisions bearing on the question when a grant is deemed to be made to the deity and when a grant 19 deemed to be made personally burdened with service. In Paturi Venkata Narayana (died) and Others Vs. Sunkara Lakshmaiya (since deceased) and Others, a Bench of the Madras High Court had drawn the distinction between tlio several types of grants. At page 172 (of Mad LJ): (at pp. 355-56 of AIR) referring to the decision of Venkatasubbarao J., in Sami Ayyangar and Others Vs. Venkatramana Ayyangar and Another, , Satyanarayana Rao J., who delivered tho following judgment on behalf of the Bench observed as follows:

The grant may be to an institution, such as a temple or mutt, the grant may be to an office to serve as emoluments attached to that office, or the grant may be burdened with service and which cannot be resumed so long as the grantee is ready and willing to render services. In the case of grant to the institutions, there is no difficulty because the trustees would have absolute control over such grants. In the case of grants to an office so long as the office-holder holds the office and renders service which he is bound to render he is entitled to enjoy the emoluments. He is treated as the servant of the temple- and the trustees would have jurisdiction over him and to dismiss him if a proper case is made out for failure to render service, and appoint in his place another person who may be allowed to recover possession of the emoluments. In the third case the trustees of the temples have no power or control over the inamdars as the inam is one burdened with service & the terms of the grant can be enforced only by the state which has confirmed the grant in the inam proceedings of 1860. Whether the grant in fact falls under one or the other of the categories mentioned above is a matter to be determined on a consideration of the evidence in the case which usually consists of the lnad if one is available, the inam statement, inam lair register extract and the title-deed.

As already, we are clearly of opinion that the grant was not made to the institution. We are also clear that the grant was not made to the office holder. We are of opinion that the grant was personal grant made to the temple servants subject to the obligation to perform services in the temple. The trustee had consequently no power to dispossess the Plaintiffs of the suit lands.

It it clear from die evidence of the Defendant''s witnesses that no registered notice was sent to the 1st Plaintiff calling upon him to explain the charges levelled against him. What is slated is that D. W. 2 was directed to servo the notice on the 1st Plaintiff and that die 1st Plaintiff refused to receive the notice. The learned Judge rejected the evidence of D. Ws., 1 and 2 and held that there is no sufficient proof that the notice was sought to be served on the 1st Plaintiff.

The trustee, examined as D. W. 4, staled that ho directed the manager of the temple to issue a registered notice. But still no such notice was sent to him. It is also stated that no evidence was taken in regard to the charges and that (ho trustee merely acted upon lire office note put by D. VV. 1. The order of dismissal was also not served on the 1st Plaintiff. It is stated that it was published on the notice board of the temple. This does not amount to a valid service of the order of removal. We agree with the finding of the Subordinate Judge that the order of dismissal Ex. B-20 is not a valid one.

It'' is clear law that without issuing a proper notice, an order of dismissal passed by the Trustee, cannot be regarded as valid. In Narasayya y. Venlafcagiri Rajah, ILR 23 Mad 262 at p. 267 (H), it has been held that notice of resumption is absolutely necessary and that before resumption of the lands can take place, there miist be reasonable notice. Beliance was placed on the Privy Council decision in Unide Rajah Raj''e Bommarauze Bahadur v,J Pemmasamy Venkatadri Naidu, 7 Moo Ind App (I). Even on the footing that the Inam was in lieu of wages, there has been no proportion of the service. In the view taken by the grant was one burdened with service, it is open to the Trustee to refuse the land, we told that, he could not dismiss the employee, i. e., first, Plaintiff, 1957 Andh. Pra. D.F./31

On all the above grounds, we agree with the decision of the Subordinate Judge and dismiss the appeal with costs, to come out of the temple funds,;