CHAMI CHETTIAR Vs. THIRUMANDHAM KUNNU BHAGAVATHI DEVASWOM

JUDGEMENT

(1.) The question of law referred to us by the division bench which is hearing this appeal is whether S.7 and 7B of Act 1 of 1964, as amended by Act 35 of 1969, are ultra vires the Constitution.

(2.) The facts are these: The property in suit, 46 acres of garden land, belongs to a devaswam, and the present suit, brought on its behalf by its hereditary trustee, is for recovery of possession of the property with mesne profits from the hands of the defendants on the allegation that they are in unlawful possession on the strength of a void lease deed, Ext. A1 dated 12-9- 1954, executed in favour of the 1st defendant by the 2nd defendant's father, the then hereditary trustee who died in January 1958. In 1942, soon after the dismissal of a suit brought by him to set aside a notification made by the Madras Hindu Religious Endowments Board under S.65A of the Madras Hindu Religious Endowments Act, 1926, this trustee had granted a lease of the property for over five years in favour of one Rocky in violation of S.76 of that Act. In the same year, the executive officer appointed by the Endowments Board, who had taken over the management of the devaswam, sued for the recovery of the property on the ground that the lease in favour of Rocky was bad. He obtained a decree and took delivery on behalf of the devaswam in November 1944. In June 1954, the management of the devaswam was handed back to the trustee, and it was hardly three months thereafter that the trustee executed and registered the impugned lease deed, Ext. Al dated 12 9 1954, reserving an annual rent of Rs. 100/- for the 45 acres of garden land. It was on the finding that this lease was bad that the Trial Court gave the plaintiff the decree for possession against which defendants 1 and 3 have brought this appeal.

(3.) The term stated in the lease deed was four years; but the division bench has found that the lease was really intended to be for a much longer period, four years being falsely mentioned in fraud of S.29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, which, by the time of the lease deed, had replaced the Madras Hindu Religious Endowments Act, 1926. That section says that any lease for a term exceeding five years of any immovable property belonging to a religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution of course, no such sanction was taken. The division bench accordingly pronounced the impugned lease null and void ab initio and of no legal effect whatsoever. But defendants 1 and 3 claimed they were "deemed tenants" under S.7 and 7B of Act 1 of 1964 and, therefore, entitled to fixity; and, on the validity of those provisions being questioned by the plaintiff, the bench has referred the question of their validity to us.