THE SRI ARUMUGHANAINAR KOIL DEVASTHANAM Vs. KANDASAMI MOOPANAR

JUDGEMENT

(1.) THE appellant was the plaintiff in a suit for recovery of possession of certain properties with past mesne profits. The properties in question admittedly belong to a Devastanam of which the Zamindar of Sivagiri is the trustee. On 21st November, 1940, the Court of Wards, by an order under Section 18 of the Court of Wards Act, took over the superintendence of the Sivagiri estate, and on 28th January, 1941, a notification was issued to the effect that the superintendence of the trust properties had been taken over by the Court of Wards and the management entrusted to its manager. The properties now in suit were in 1933 held under a lease which was to terminate in two years' time. On 14th January, 1938, the respondent submitted a petition (Ex. P -1) to the Zamindar in which he prayed for the grant of a lease in respect of the suit lands, described as Arumugha Nayinarkoil Manibam lands for seven years, from fasli 1350 to fasli 1356 at a rental of Rs. 580 per annum, the petitioner offering to pay the rent in advance. On the same date an order was issued (Ex. D -8) to the effect that the Zamindar had sanctioned the lease and had received the advance rent of Rs. 4,060 and directed the execution of a muchilika in accordance with the conditions of sale. As a matter of fact no auction of the lease appears to have been held though there is some reference to an auction in Ex. D -8. The muchilika was accordingly executed on 18th January, 1938. When the Court of Wards took over the estate an enquiry was held into this lease and it was brought to the notice of the Court that though the rent might be deemed to be reasonable having regard to the fact that it was paid in advance two years before the lease began to run, the lease was in excess of the powers of the trustee with reference to Section 76(1) of the Madras Hindu Religious Endowments Act. It was also ascertained that the advance rent collected by the Zamindar had been appropriated by him and not credited to the Devastanam. The Court of Wards was at first inclined not to incur the expense of the litigation which would result from the cancellation of the lease and it requested the Hindu Religious Endowments Board to sanction the lease. This the Board quite properly declined to do. Thereupon the Court directed its manager to give notice of the determination of the lease and to take steps to recover possession of the property. Hence the present suit.

(2.) ALL the issues of fact have been found in favour of the plaintiff and it has been found that the lease in question is an unlawful lease not justified by any benefit to the temple and in excess of the powers of the trustee. The learned Subordinate Judge has however dismissed the suit on the view that Section 63 of the Court of Wards Act does not empower the Court of Wards to institute proceedings for the recovery of properties belonging to the Devastanam of which the ward is the trustee and which have been wrongfully alienated by the ward. Section 63 runs as follows:

(3.) AN attempt has been made by Mr. Subramaniam Chettiar for the respondent, to justify this alienation on the ground that the rent paid was adequate and the property is one which necessarily has to be leased. By the terms of Section 76(1) of the Madras Hindu Religious Endowments Act the lease for a term exceeding five years of Immovable property belonging to a temple is not to be valid or operative unless it is necessary or beneficial to the temple and is sanctioned by the Board or the Committee as the case may be. Quite apart from the fact that this lease was for seven years, it had the most undesirable feature of an advance payment of rent made two years before the lease was to begin, the whole of the rent being appropriated to the private purposes of the trustee and no attempt has been made to show that there was even an apparent necessity for the temple to make such an inappropriate form of lease. It seems to us that the lease was clearly not beneficial to the temple and that it must be set aside.