GHADIYARAM SESHAYYA Vs. CHINTALAPATI SEETHARAMAMMA

JUDGEMENT

(1.) The appellant is the plaintiff. He sued to recover 320 acres of inam land from the possession of Seetharamamma, the first defendant, the daughter of his deceased brother Venkatapayya. This land is a portion of an inam grant of 1891 acres under inam title deed No. 99 for the performance of Swasthivachakam service in the temple of Sri Vennamudda Krishnaswami. The inam was admittedly confirmed in favour of Ghadiyaram Dikshitalu in the year 1860 as evidenced by the inam register extract Ex. P-1. It is common ground that this grant was amicably and, it would appear, informally divided for the purpose of enjoyment in equal shares between Dikshitalu's descendants one Surayya who is the father of the plaintiff, the 7 defendant and Venkatapayya and Surayya's brother, Ramayya, the father of the 8th defendant. It is also common ground that subsequently there was a similar partition between the brothers, plaintiff, the 7 defendant and Venkatapayya, which resulted in each obtaining separate enjoyment of about 3 acres. On Venkatapayya's death on 22nd October, 1941, a dispute arose as to who should enjoy the share allotted to him which is the suit property. The plaintiff and his brother on the one hand, and their brother Venkatapayya's daughter and her minor sons through her husband Chintalapati Venkatapayya who is said to be a suits clerk under some merchant, competed with separate petitions for recognition as hereditary heirs in place of the deceased Venkatapayya. The brothers claimed that their names should be included in the Devasthanam record. On behalf of their brother's daughter a similar claim was made for herself and her minor sons. The daughter's petition was dismissed by the trustee in an order Ex. P-8 and the names of the two brothers as male heirs of Venkatapayya were recorded. The District Munsiff decreed the plaintiff's suit mainly on the basis of Ex. P-8 which he considered to be a decision under Section 43 of the Hindu Religious Endowments Act. The learned Subordinate Judge in appeal found that the inam was divisible and had been enjoyed in distinct shares, that the brother's daughter and her sons were nearer heirs to Venkatapayya who had divided from his brothers, and that the trustee could not validly interfere with the hereditary right of succession to the office or emoluments in violation of Hindu law. He accordingly directed the dismissal of the suit with costs throughout.

(2.) There were some subsequent developments after the suit was filed. The trustee passed a formal order dismissing the 1 defendant, from the office of "Swasthivachakam" service- holder on the grounds that she did not obtain the consent of the trustee for getting the service done by her husband as proxy, (2) that the proxy did not, render service properly as he was absent from the village on his own business, and (3) on the ground that the proxy was not well versed in vedas. The Madras Hindu Religious Endowments Board on 23 November, 1945, after the judgment of the learned Subordinate Judge dismissing the suit, allowed the appeal and restored the first defendant to her place as Swasthivachakam servicedar permitting her to get the service performed by her husband as proxy. I permitted the Board's order to be marked as evidence in this appeal in C.M.P. No. 7233 of 1948 not for purposes of evidence as such but for some comments, I desire to make on the illegality of the entire procedure which appears to be adopted as regards the recognition of partitions of religious service inams, and the right to enforce hereditary rights to fragmented portions of these inam grants.

(3.) In the present case, both sides are on common ground as regards the right of the family to whom the inam grant was originally made to partition the inam itself and to go on doing so in each succeeding generation. It is also common ground that the plaintiff, the 7 defendant and yenkatapayya had divided their half share in the inam amongst themselves and they cannot get away from the position that they are on their own showing divided brothers. If strict hereditary right is to be applied to the succession to this portion of the inam so divided, there can be no doubt that Venkatapayya's daughter is a nearer heir than his divided brothers and that from this point of view the learned Subordinate Judge's dismissal of the suit is correct. Even treating the trustee's order Ex. P-8 as an administrative order under Section 43 of the Religious Endowments Act the subsequent dismissal of the first defendant has been upset in appeal by the Board itself which has re-instated her in Swasthivachakam service.