Sri Vedaraneesw Ararswamy Devasthanam v. The Dominion of India and Another.

Gajendragadkar J. ted 46 Pagodas which was the average of charges and

expenses incurred in collecting the port duties. Thns the net annual average revenue was 486 Pagodas. Then an account was made of the income received by the temple from salt manufacture in the salt pans and it was ascertained that an average income in that be-half would be Star Pagodas 1362. That is how the whole annual income was found to be 1848 Pagodas. It would thus be seen that elaborate calculations were made to determine the amount of compensation which should be legitimately paid to the temple for depriv - ing the temple of the possession of its properties in question. It was then considered whether the com-mutation for the amount should be in land or in money, and, as we have alrady pointed out, a recom-mendation was made that payment of commutation in the form of land would be more certain and per-manent. Thus the perusal of this document leaves no doubt that the property was intended to be acquir-ed permanently for the purpose of manufacturing salt. It is on that basis that calculations were made and the amount of compensation determined.

It appears that this proposal made by the Collector was not approved by the Government at Fort St. George. In the letter written by the Secretary to the Government on October 28, 1806, it was recommended that a payment should be made from the public trea-sury of a compensation for the Joss which the pagoda had sustained by the introduction of salt monopoly in the Province of Tanjore not exceeding Star Pagodas 1848 per annum. The proposal thus made by the Government was accepted by the Board and its deci-sion was communicated by the letter of November 17, 1806. It is in the background of this correspondence that we have to decide the effect of the terms contain-ed in Ex. A. 1. Thus considered there can be little 5,; doubt that though the property was not purchased Vedarnneeswarnr-outright it was taken charge of on a permanent basis swam.r for the purpose of manufacturing salt and compensa-Deuasthanam tion was determined on the same basis but made v. paya bl e annua II y at t h e rate o f 1848 P ago d as. The Dominion of India & Anr. There are, however, some other documents on which Mr. Sastri relies. An extract from the inam Gajendrngadkar register prepared on November 27, 1862 (Ex. A. 18) has been pressed into service by the appellant. The main argument is that the relevant columns 16 to 20 which give particulars regarding the owners do not refer to the Company's right under this permanent arrangement. If the transaction was a permanent lease, it is urged, the lessee's rights would have been specified in the relevant columns. We are satisfied that this argument is not wellfounded. The main column deals with particulars regarding the owners.

It also provides that if the inam was sub-divided the name etc. of• each sharer shall be entered in its columns. We are, therefore, not satisfied that the name of the permanent lessee was expected to be shown in this column. It is true that in determining the additional assessment on excess area payable by the temple the whole of the property is assumed to belong to the temple; but that is not inconsistent with the temple continuing to be the lessor of the suit property at all. There is no doubt that if the Com-pany had become the lessee of the said suit property by a document duly executed in that behalf entries made in the inam register cannot change or affect the character of the said right. Therefore, in our opinion, there is nothing in Ex. A. 18 which militates against . the case set up by respondent 1.

Then Mr. Sastri has relied on Ex. A. 2 which is a title deed issued by the Inam Commissioner is favour of the temple. In this document the temple's title to the Devadayam or pagoda inam village of Agastiyam-palli is recognised and specific mention has been made of the porambokes in the said village. It is stated that the whole of the property is held for the support r96r of the pagoda in the village of Vedaranyam. What

we have said about the extract from the Inam Regis-Sri ter applies with equal force to this document.

Vedaraneeswarar-

~wamy It appears that from 1806 when the Company took Devasthanam v" . possession of the property until 1941 the appellant has

allowed the Company and its successors to be in quiet The Dominion of enjoyment of the property on receipt of an annual com-

Indi~ Anr. pensation paid from year to year. In 1941 the factory Gajendragadkar 1. officer wrote to the trustee of the appellant to let him

know the name or the names of the revenue villages to which the area covered by the salt factory was originally attached prior to the acquisition, and he enquired whether any compensation amount had been paid to the temple for the said acquisition. It is this letter which presumably started the appellant's pre-sent claim. Soon after receiving this letter the appel-lant wrote to the factory officer on April 8, 1941 alleging that the property had been leased out to Government for the manufacture of salt for a monthly lease of Rs. 350 or annually Rs. 4,200. The appellant thus set up a relationship of lessor and lessee between itself and respondent 1. Then the appellant moved the relevant authorities for appropriate relief on one ground or another. All its efforts to obtain possession of the property or even to have the amount of com-pensation enhanced failed and that led to the present dispute.

The main argument which has been urged before us by Mr. Sastri is that in construing Ex. A. 1 we ought to bear in mind the limitations on the powers of the manager of the temple at the relevant time. Mr. Sastri has relied on the fact that the manager of a temple could not have entered into a transaction of perman-ent lease unless there was a compelling necessity so to do. A permanent lease amounts to an alienation of the property and would have to be justified as such. An annual lease, on the order hand, can be executed by the manager in his capacity as the manager and the same is treated as an act of prudent management. That, however, is not true about a permanent lease, and so in construing the document we should attribute to the manager the desire and intention to act within 1 s.c.R. SUPREME COUitT REPORTS 95 his powers and not without them. In support of this r96r argument Mr. Sastri has referred us to the decisions Sri of the Privy Council in Maharanee Shibessouree Debia Vedamneeswarar-v. Mothooranath Acharjo('), Nainapillai Marakayar v. swamy Ramanathan Chettiar (2), and Palaniappa Chetty v. Devasthanam Deivasikamony Pandara (3). The argument is that a v •.. fair and reasonable rule of construction would be f to Thie dDon::•Aion of treat the document as execute d m . pursuance o t h e n ia _ ~ nr. legitimate authority available to the manager of the Gajendragadkar temple and not as one which is executed in breach of the said authority. This position cannot be and is not disputed.

In the application of this rule to the present case, however, two relevant facts cannot be ignored. The first ,important fact is that after the execution of the document more than a century has elapsed; and so, as observed by the Privy Council in Bawa Magniram Sitaram v. Kasturbai Manibhai ('), "where the vali-dity of a permanent lease granted by a shebait comes in question a long time (in the present case nearly 100 years) after the grant, so that it is not possible to ascertain what were the circumstances in which it was made, the Court should assume that the grant was made for necessity so as to be valid beyond the life of the grantor". In the present case more than a cen-tury has elapsed after the grant was made, and so the principle laid down by the Privy Council in that case can well be invoked by respondent I.

Besides, it is common ground that under the rele-vant provisions of Regulation I of 1805 the manufac-ture and sale of salt was made subject to the immediate direction and control of the general agent appointed by the Government, and the said manufacture and sale as well •as transit, export and import of salt, whether by sea or by land in the territory subject to the Presidency of Fort St. George was prohibited except on account of Government or with their express sanction. It was also provided that all salt manufac-tured, sold, conveyed, exported or imported, directly

\I} (1869) 13 Moo. I.A. 270, 273, 275.

196' or indirectly, otherwise than is provided for in the

said Regulation, shall be liable to seizure and confisca-Vedara~:::warnr· tion. In other words, part of this property belonging

swamy to the temple on which salt was being manufactured Devasthanam became absolutely useless for that purpose as the tem.

v. pie could no longer manufacture, or permit the manu-The Dominion °1 facture of, salt. Faced with this situation it is not .at

India'°' Anr. all unlikely that the manager of the temple was Gajendrngadkar 1. compelled to enter into 1>n arrangement with the Com-

pany and secure for .the benefit of the temple a sub-stantial permanent income accruing from year to year. It is common ground that the whole of the property was marshy and the only use to which it could be profitably put was for the manufacture of salt, and that could no longer he done after Regulation l·of 1805 was passed. That is why we think that even the test of the rule of construction on which Mr. Sastri relies can be said to be satisfied in the present case. Circumstanced as he was the then manager or trustee had no option but to enter into an agreement like the one which was evidenced by Ex. A. l; thereby the manager provided for a recurring income to the temple and thus arranged for the upkeep of the temple, the worship of the idol and discharge his duties as trustee.

We have already seen how the previous correspond-ence which preceded the execution of the document unambiguously shows that the intention of the Com' pany was to take possession of the property on a per.- manent footing, and realising the limitations imposed by the Regulation the· manager of the temple would also have wanted to give the property to the Company permanently and thereby create a permanent source of income for the temple. The subsequent conduct of the temple for over a century is consistent with the view that the temple knew that the property has been permanently given to the Company and is inconsistent with the present case that the lease is an annual lease. The payment and acceptance of the same uniform rent for over a century when so many political and other changes took place also support the same con-clusion. The pleas set up by the appellant from stage to stage in respect of its relationship with respondent I '96' in rega:d to th~ possession of this land have changed -;:: from tune to time and that shows that the appellant Vedaraneeswarar-was at pains to put forward a basis on which it could swamy claim either possession or enhanced rent. The fact n,,.,,,ehanam that respondent l is making large profits out of this . v .. proper t y may 1 · th . e " t' s d cs1re . to get I h< Uominion of e~p au~ ~ppeuan India,,. Anr. some more share m the said mcome but that cannot assist the appellant if it has parted with the property GojenJragadhar J. permanently as early as 1805 011 the terms and condi-tions specified in Ex. A. I. In our opinion, the High Court was right in coming to the conclusion that the transaction evidenced by Ex. A. 1 is a permanent lease and that respondent 1 is entitled to retain posses-sion of the whole of the property on the terms and conditions specified in the said document. We must accordingly hold that the appellant's claim either for possession or for enhancement of rent has been pro-perly rejected by the courts below.

In the result the appeal fails but there will be no order as to costs.

Appeal dismissed.

GOVERNMENT OF UTTAR PRADESH

AND OTHERS

F1bruary r6. v.

RAJ A MOHAMMAD AMIR AHMAD KHAN

(J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)

Stamp Duty-Instrument presented to Collector for opinion as to duty chargeable-Collector assessing duty-Impounding and demand of duty-Legality of-Indian Stamp Act, z899 (II of z899),

SS. JI, J2, 33·

The respondent executed an instrument and presented it to th·o Collector for iii> opinion under s. 3r Stamp Act as to the duty charg''J.ble. Th.e Collector; after a reference to the Board of J{';venue, determined the duty payable. He then impounded the i11strument and ordered that the duty be deposited within

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 371 of 1956.

Appeal from the Judgment and decree dated August 28, 1953, of the Madras High Court in A.S. No. 262 of 1949.

A. V. Viswanatha Sastri, R. Sundaralingam and B. K. B. Naidu, for the appellant.

Ganapathy Iyer, V. A. Seyid Muhamad and T. M. Sen, for the respondent No. 1.

1961. ]'ebruary 15. The Judgment of the Court was delivered by Gajendrngadkar ]. GAJENDRAGADKAR, J.-This appeal has been brought

with a certificate issued by the Madras High Court and it arises out of a suit filed by the Managing Trustee of the appellant Sri Vedaraneeswararswamy Devastha-nam against respondents 1 and 2 the Dominion of India and the Province of Madras respectively. In this suit the appellant claimed a declaration that the properties in suit belong to the appellant and asked for a direc-tion against respondent 1 to put the appellant in possession of the same. A further direction was claimed against the said respondent calling upon it to account for and pay to the appellant mesne profits I past and future and an alternative plea was also made by which the court was requested to determine the proper rent payable by the said respondent to the appellant. This claim has been rejected by the learned Subordinate Judge of Mayuram who tried the case and an appeal preferred by the appellant against the trial court's decision has likewise failed. That is why I96I the appellant has come to this Court. Sri

According to the appellant the suit properties which V•damn"swurar· ad measure about 2,400 acres are situated in the village swamy of Agastiyampalli and the said village was granted in Devasthanam inam absolutely to the appellant by the Tanjore Rajas v. several centuries ago. . From ] . the time of . the said grant Th• Dominion th e appe 11 ant was m exc us1ve possess10n an d enJOY· · India<!> _ Anr. ment of the said properties, and its trustees and Gaj<ndragadhar J, managers used to look after them and collect their profits for the use and benefit of the appellant. In 1806 an agreement was reached between the East India Company and the appellant under which the Company took possession of the appellant's properties in suit and in return promised to pay a sum of 1848 Pagodas annually. Out of this amount 1200 Pagodas represented the rent of the property. Pursuant to this agreement the Company took possession of the said property and was paying the agreed rent until 1858.

In that year respondent 2 which succeeded the Company entered into possession of the property on the same terms and was making the annual payment of the said sum until 1937. Thereafter respondent 1 took over the salt revenue administration and as such the properties came into its possession. Respondent 1 has been paying the appellant the agreed amount from year to year. The appellant's case was that the true legal relationship between the parties was that of a lessor and lessee and that the lease itself was not of a permanent character but was one in the nature of annual or yearly lease which was continued from year to year. It is on this basis that the appellant made the two alternative claims specified above.

Respondent 1 disputed this claim. It denied that it held the properties under an annual or yearly lease.

Its case was that when the suit lands were taken over by the Company compensation was fixed once for all, the average income of the appellant from the manufacture of salt carried on by the appellant during the previous ten years having been taken as the basis for the purpose of calculating the said compensation .

I96r The properties came under the possession and control Sri of the Company as a result of the proceedings taken VedManeeswarar-under Regulation 1 of 1805 and the amount of

swamy Rs. 4,200/- corresponding to 1848 Pagodas represents Devasthanam the compensation annually payable to the appellant.

v. . Respondent 1 made certain other pleas on the merits The Dominion °! and urged a bar of limitation.

India _ o:f>, Anr. On these pleadings the trial court framed ten issues. Gajendragadkar J On the principal point of dispute between the parties

it held that a reading of the relevant documents clearly showed that "at the time when the Company took possession whatever the idea may then have been it must have been only to take over the properties permanently from the plaintiff Devasthanam and not to place themselves at the mercy of the trustees who might evict them at any time". According to the trial court the arrangement evidenced by the said documents was a permanent arrangement; and that being so, the appellant was not entitled to claim possession. The trial court also held that even if the relationship between the parties could be said to be that of a lessor and lessee the lease in question was a permanent lease subject only to the payment of a fixed rent of Rs. 4,200/- per annum. On these findings the trial court dismissed the appellant's suit.

The appellant then took its case before the Madras High Court. The High Court in substance agreed with the conclusions of the trial court. It considered the whole of the documentary evidence and came to the conclusion that the trial judge was right in holding that the documentary evidence showed that the arrangement by which the Company took possession of the appellant's properties was a permanent arrange-ment and that if it was held to be a lease it must be regarded as a permanent lease. According to the High Court the appellant's claim was also bi1rred by limitation under Art. 134(B) of the Limitation Act. The High Court therefore confirmed the trial court's decree and dismissed the appeal preferred by the appellant.

. In the present appeal the principal question which has been raised before us by Mr. Viswanatha. Sa.stri for the appellant is about the true nature of the r96r relationship between the parties in respect of the Sri properties in suit. He contends that the principal Vedarnneeswarar· document Ex. A. 1 on which reliance is placed by swamy respondent 1 should be construed not as a permanent Devasthanam but as an annual lease; and according to him the v ... contrary view taken by the High Court is not supported The Domininn °1 b y t h e tenor o f t h e d ocument, an d h e a 1 so argues t h at India _ 6-Anr. in construing the sa.id document the High Court has Gajendragadkar J. not borne in mind relevant principles oflaw governing the powers of the manager of a Hindu religious institution.

Let us then briefly consider the relevant documents bearing on the point. The principal document is Ex.

A. 1. It purports to be a copy of the order passed by Mr. Wallace on December 31, 1806. It is addressed to the manager of the temple and it reads thus: "As the Government have taken charge of the pagoda salt pans and Sea Customs of Thopputhurai, belong-ing to the above temple, the sum of 1848 Pagodas shall be given to the temple annually in cash from the treasury being calculated on the average amount of IO years' revenue besides which every possible assistance will be given to the temple." It would be noticed that there is no duration specified in the docu-ment, and prima facie it reads as if the Government had taken charge of the salt pans and Sea Customs permanently promising in return to pay to the temple the amount specified annually from year to year.

In construing this document reference may be made to the previous correspondence that passed between the Collector and the Members of the Board of Revenue. It is not disputed that this correspondence can be considered for the purpose of construing the effect of the terms of Ex. A. 1. On July 17, 1806, a let-ter was addressed to the President and Members of the Board of Revenue in which the idea of acquiring this property was fully explained. In this letter in was stated that "it would be better to grant to the temple commutation in land because that would be more certain and permanent than ready money payment".

In computing the compensation which may be paid to 196I the temple the accounts of the pagoda were examined.

It was found that the pagoda enjoyed revenue from S1i the d uties I evie d at ports at Thopputhurai and Kodi-Vedaraneeswarar-

swamy karai. Ten years' account showed that the average Devasthanam annual income in that behalf was 283 Pagodas. To

v. this amount was added the amount of magama or ThiedDo",'.inAion of charitable and litigious fees and the total worked out

nw- ~ at an average of 532 Pagodas. From this . was deduc-