Resumption within the scope of the provisions of Section 44-B.

This second appeal has been referred to a Bench by Subba Rao, J., for a decision about the proper construction of section 44-B of the Madras Hindu Religious Endowments Act (II of 1927).

The property in dispute was among those originally granted in inam to the ancestors of the predecessors in interest of the respondents for the performance of parak service in the pagodas of the village of Panyam in Nandyal Taluk of the Kurnool District. The Service is described in column 8 of the Inam Fair Register as follows:

“Granted for attending the procession in the pagoda with silver slicks, going before the idols and crying aloud at certain intervals”.

The total extent of the lands covered by the grants and title deeds is over 115 acres of dry, wet and garden lands and is covered by two title deeds. The conditions of the grant as set out both in the Inam Fair Register as well as in the title deeds make it clear that the grant was to enure "so long as the conditions of the grant are duly fulfilled". The Courts below have held on a construction of the Inam Fair Register, etc., that the grant comprised both the warams and it is unnecessary to canvass the correctness of this finding. Similarly the courts below have also held that the grant to the inamdars was a personal grant burdened however with the parak service and not a service inam, in the sense of the inam constituting the emoluments of the office and this finding also is not challenged before us.

The question now in controversy arises this way. The grantees of these lands have alienated considerable portions of the lands granted to them and the parak service has ceased to be performed. In these circumstances the trustees of some of the temples at Panyam moved the Sub-Collector under section 44-B of the Madras Hindu Religious Endowments Act, 1927, for the resumption of the lands and their regrant to the temple on the first two grounds on which resumption could be ordered under section 44-B(2)(c). The Revenue Divisional Officer, Nandyal, conducted an enquiry, and as a result recorded his findings in his proceedings, dated 30th September, 1943, holding that the inam comprised both the warams, that the inam was granted to the predecessors in interest of the respondents on condition of their rendering parak service, that there has been a breach of the condition of the grant by failure to perform the service and that the lands comprised in the inams had been alienated by way of sales, mortgages, gifts and leases falling within section 44-B(2)(c)(i): On these findings the resumption of the inam lands was ordered and by this very order he granted both the warams to the temple in Panyam village. The alienees filed an appeal to the Collector and this was dismissed by order dated 1st August, 1944, by the officer who confirmed the findings of the Revenue Divisional Officer.

The plaintiffs accordingly filed this suit against the trustees of the temples under the proviso to section 44-B(2)(d) raising inter alia the question as to the jurisdiction of the revenue authorities to order the resumption of the inam in suit under section 44-B. The trustee-defendants raised contentions regarding the nature of the grant by pleading that the suit lands are religious service inams, in the sense of being emoluments for the performance of service, and alternatively that even if the inam was a personal grant in favour of the grantees, burdened with the performance of the parak service, the grant was conditional on the performance of the service and as there was breach of this obligation, resumption and re-grant were justified under section 44-B.

The courts below concurrently found that the inam was a personal grant burdened with the parak service and that though there had been alienations of the lands granted, and failure in the performance of the service, the resumption and re-grant by the revenue authorities acting under section 44-B was ultra vires and that recourse must be had to the machin