CHERIA MAMMAD HAJI Vs. RAGHAVAN

JUDGEMENT

(1.) PLAINTIFFS sued for recovery of arrears of rent from the 1st defendant who was the tenant of Jenmi,the Devaswom,plaintiffs having subsequently taken a kanom deed from the Devaswom on 30th March 1960 in regard to the suit property and other properties.That kanom was executed by some only of the Ooralers of the Devaswom and without sanction having been obtained from the commissioner under the Madras Hindu Religious and Chari­table Endowments Act,1951.It is not disputed that the Jenmi Devaswom comes within the scope of that Act.Plaintiffs seek to justify the kanom on the ground that it was executed to avert the sale of the property of the Devaswom and therefore was very beneficial to the interests of the Devaswom.

(2.) IT is agreed that all the Ooralers of the Devaswom have not joined in the execution of the kanom in favour of the plaintiffs.It is also agreed that sanction from the commissioner has not been obtained.It is contended that the kanom deed was executed to save the Devaswom from heavy loss and actually the interest of the Devaswom has been served by the execution of the deed.On that there does not appear to be much controversy.Is that sufficient to secure title under the kanom to the plaintiffs? That is the question raised in this second appeal.

(3.) SECTION 76 of Act II of 1929 is certainly not identical to section 29 of Act XIX of 1951.There appears to be material difference between these two sections.I will now extract section 76 of the repealed Act and section 29 of Act XIX of 1951. Madras Act II of 1929: "76(1 ).No exchange,sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple shall be valid or opera­tive unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the case of maths and excepted temples and by the committee in the case of other temples. (2)The trustee of the math or temple or any person having interest may,within one year of the date of the order of the Board or committee under sub -section(1 ).apply to the court for modifying or,cancelling such order. (3)The order of the Board or committee under sub­section(1)when no application is made under sub -section(2)and the order of the court when such application is made shall be final." Madras Act XIX of 1951: "29(1)Any exchange,sale or mortgage and any lease for a term exceeding five years of any immovable property belonging to,or given or endowed for the purposes of,any religious institution shall be null and void unless it is sanctioned by the commissioner as being necessary or beneficial to the institution: Provided that before such sanction is accorded,the particulars relating to the proposed transaction shall be published in such manner as may be prescribed inviting objections and suggestions with respect thereto;and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the commissioner. (2)When according such sanction,the commissioner may impose such conditions and give such utilization of the amount raised by the transaction,the investment thereof and in the case of a mortgage,regarding the discharge of the same within a reasonable period. (3)A copy of the order made by the commissioner under this section shall be communicated to the Govern­ment and to the trustee and shall be published in such manner as may be prescribed. (4)The trustee may within three months from the date of his receipt of a copy of the order,and any person having interest may within three months from the date of the publication of the order,appeal to the Government to modify the order or set it aside. (5)Nothing contained in this section shall apply to the inams referred to in section 35."