Any alienation, including a mortgage, that would lead to the loss or deprivation of property to the temple is invalid, as it is against public policy to keep the property out of the reach of the creditors of the holder of the Inam.

Venkataramana Rao, J.

1. The question raised in these becond Appeals is whether a mortgage of a temple service Inam is valid. It is conceded by Mr. Patanjali Sastri that a sale of it is invalid. But he contends that a mortgage stands on a different footing. In Sundararaju Dikshatulu v. Seshadri Dikshitulu (1927) 54 M.L.J. 76 Kumara-swami Sastri, J., was inclined to the view that a mortgage would be invalid, On page 80 he observes:

It has now been settled by this Court that alienations of temple service lands by sale, gift or mortgage, are invalid. I need only refer to the decision of the Full Bench in Anjaneyulu v. Sri Venugopala Rice Mill, Ltd. AIR1922Mad197.

2. The Full Bench case dealt with the case of an attachment in execution of a decree, The ground of prohibition is based on public policy. As Sir Walter Schwabe observes, an alienation by the holder:

Is quite opposed to the nature of his interest and duty, namely, that he should enjoy the produce of the land as salary for the public services he has to render, that he should sell it or alienate it, leaving himself without the means of subsistence and without further interest in the place or in the performance of the services". Anjaneyulu v. Sri Venugopala Rice Mill Ltd. AIR1922Mad197.

3. It was on this ground that the attachment was held to be invalid as the sale in pursuance thereof would deprive the inamdar of the land and then consequent loss of services to the temple. Mr. Patanjali Sastri contends that a mortgage would not necessarily lead to this result as it might be open to courts, instead of ordering a sale, to appoint a Receiver to appropriate the profits towards the debt after making due provision for the maintenance of the holder of the Inam; and he also relies on the cases where the Courts permitted leases of such Inam lands. Leases have been upheld on the ground that:

Very often leasing the land is the usual or the beneficial mode of enjoyment and although the land is cultivated by some one else he provides for himself what was intended he should have, namely, a sustenance from the land.

4. But even in the cases of leases, Kumaraswami Sastri, J., observes in Sundara Raju Dikshatulu v. Seshadri Dikshatulu (1927) 54 M.L.J. 76 (where a transaction by way of a lease was held to be valid):

A lease for 99 years or for a long term is as much an alienation as a sale or mortgage is.

5. Therefore if the alienation is such that it would lead to the loss or deprivation of property to the temple it must be held to be invalid. A mortgage would lead to the loss of the property. In fact the prayer in this case was for sale of the property. The fact that the Court might choose to appoint a Receiver in particular cases cannot be taken into account in testing the validity of an alienation.

6. Public policy requires that the property should as far as possible be kept out of the reach of the creditors of the holder of the Inam to secure the due performance of service in which the public are interested. A mortgage of the property would prima facie be detrimental to the interests of the temple. Mr. Patanjali Sastri relied on Standing Order No. 54, Clause (2) of the Board of Revenue which provides for resumption of religious and charitable inams on alienation. The said Clause 2 itself gives an indication that the alienation is prima facie a ground of resumption unless as part of the transaction the alienation is subject to the payment to the institution or in support of the service a sum not less than the net assessment of the land.

7. The mortgages in question do not provide for any such payment. I am therefore of opinion that the mortgages in question are invalid and the decrees of the lower Court are right.

8. In the result, the Second Appeals fail and are dismissed with costs in Second Appeal No. 1925 of 1931 only.