OUSEPH THOMMI Vs. TRAVANCORE DEVASWOM BOARD

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the decree of the lower court in a suit for setting aside an order passed by the 1st defendant in the case, the Travancore Devaswom Board, under S.2 (3) of the Hindu Religious Institutions Act 1950. The plaint schedule properties belonged to the Vaikom Devaswom and they were assigned to the tarwad of defendants 2 and 3 who are Chakyars for the performance of Koothu service in the Devaswom. This grant, it is alleged, was somewhere before 1000 M.E. Subsequently in or about the year 1010 M.E. the Chackyars demised the plaint properties on kanapattom to third parties who obtained periodical renewals from time to time. The kanom right subsequently became vested in the plaintiffs by assignments. The 1st defendant on 26-4-1952 passed an order for resumption of the plaint schedule properties and other properties alleging that the properties were service inam lands, that there was default in the performance of services and that the properties were alienated by the tarwad of defendants 2 and 3. The abovesaid order was impeached by the plaintiffs in the plaint on several grounds, the most important of which were, that there was no alienation of the plaint properties as contemplated under S.28 (3) of the Hindu Religious Institutions Act 1950, and that the services were being regularly performed. They therefore prayed for setting aside the order of resumption. The 1st defendant who alone contested the suit contended that the tarwad of Chackyars had committed default in the performance of the services, that in any event the alienation of the property by the tarwad of defendants 2 and 3 had entailed a forfeiture of its rights in the property and therefore the order passed was not liable to be set aside.

(2.) The lower court found that there was no default in the performance of the services by the tarwad of defendants 2 and 5, but the kanapattom deed and its subsequent renewals executed by the tarwad of defendants 2 and 3 were alienations within the meaning of S.28 (3) of the Hindu Religious Institutions Act 1950 which would work a forfeiture of the right of the tarwad of defendants 2 and 3 over the properties. In that view the lower court came to the conclusion that the order passed by the Ist defendant was perfectly valid and dismissed the plaintiffs suit. It is this decree which is being attacked in this appeal.

(3.) Counsel for the appellants argued that ;he lower court went wrong in finding that the properties were alienated within the meaning of S.28 (3) by the execution of the kanom document and its renewals by the tarwad of defendants 2 and 3. Kanom, according to him is a mode of enjoying the property and not an alienation as contemplated by S.28 (3) of the Hindu Religious Institutions Act. As no authority directly in point was placed before us, we think that we are justified in taking the view that kanom is only an ordinary mode of enjoying the property. What is prohibited by S.28 (3) is an alienation of service inam lands contrary to the past usage. Now it stands to reason that the Chackyars to whom the grant was made were not expected to take themselves to agriculture for the purpose of getting the income from the properties. The object of the grant, we take, was that the Chackyars should devote their time and talent for the purpose of performing Koothu service in the Devaswom. Therefore any method ordinarily employed for enjoying the property is not prohibited under the Section. It is well known that giving the property on kanom is one method of enjoying it. Sundara Iyer in his Malabar and Aliyasanthana Law at page 290 says: