Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Mad) 311

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MOHAN & THE HONOURABLE MR. JUSTICE P.K. SETHURAMAN
A. Jalini Ammal (died) & Another
Versus
Sri Vedaranyaswami Devasthanam by its Executive Officer & Another
S.T. Appeal Nos. 88 to 92 of 1979 and 51 of 1981
Decided On :Decided on : 09-08-1988

Advocates Appeared:
Mr. R. Sundaravaradan, for Mr. K. Ramachandran for Appellant. Mr. K. Srinivasan for the 1st Respondent.
Mr. K.V. Munuswamy, Government Advocate on behalf of the 2nd Respondent.

The presumption under Section 44 of the Tamil Nadu Act 30 of 1963 can be rebutted by evidence of transactions beyond 60 years, sale of Kudiwaram right in Court auction by the grantee, and issuance of Hijara Patta by the grantee.

Headnote:
LAND REFORM - KUDIWARRAM RIGHT - PRESUMPTION UNDER SECTION 44 OF TAMIL NADU ACT 30 OF 1963 - REBUTTAL BY TRANSACTIONS BEYOND 60 YEARS - SALE OF KUDIWARRAM RIGHT IN COURT AUCTION BY RESPONDENT-DEVASTHANAM - HIJARA PATTA ISSUED BY TEMPLE - CONCURRENT ORDERS OF SETTLEMENT TAHSILDAR AND TRIBUNAL SET ASIDE.
Fact of the Case:

Appellants-claimants challenged the concurrent orders of the Settlement Tahsildar and the Tribunal, which held that the grant of land in question consisted of both the Warams (Kudiwaram and Melwaram) in favor of the respondent-temple. The appellants argued that the presumption under Section 44 of the Tamil Nadu Act 30 of 1963 was rebutted by transactions beyond 60 years, that Kudiwaram right was brought to sale in Court auction by the respondent-Devasthanam itself, and that Hijara Patta had been issued by the temple, which reiterated Kudiwaram in favor of their predecessors-in-title.
Finding of the Court:

The court found that the various payments to be made by the occupants of the land, as indicated in the Fair Inam Register, had a bearing on the issue of whether the grant consisted of both Warams. It also noted that there had been transactions including alienations right from 1894, which could potentially rebut the statutory presumption under Section 44 of the Act. Additionally, the court considered the sale of Kudiwaram right in Court auction by the respondent-Devasthanam and the issuance of Hijara Patta by the temple as evidence in favor of the appellants' claim to Kudiwaram right.
Issues: 1. Whether the presumption under Section 44 of the Tamil Nadu Act 30 of 1963 applied to the grant of land in question, considering the various payments to be made by the occupants and the transactions beyond 60 years. 2. Whether the sale of Kudiwaram right in Court auction by the respondent-Devasthanam and the issuance of Hijara Patta by the temple supported the appellants' claim to Kudiwaram right.
Ratio Decidendi: The court held that the concurrent orders of the Settlement Tahsildar and the Tribunal could not be supported in law. It reasoned that the various entries in the Fair Inam Register, including the payments to be made by the occupants, could not be disregarded in invoking the presumption under Section 44 of the Act. The court also considered the transactions beyond 60 years, the sale of Kudiwaram right in Court auction by the respondent-Devasthanam, and the issuance of Hijara Patta as evidence that rebutted the presumption of both Warams being granted to the respondent-temple.
Final Decision: The court allowed S.T.A. Nos. 88 to 92 of 1979 in favor of the claimants and allowed S.T.A. No. 51 of 1981 in favor of the appellant, Sri Vedaranyaswami Devasthanam. There was no order as to costs.

Judgment :-

MOHAN, J.

1. In the appended tabular statement (omitted Ed.) we have under various columns stated as to the property involved and the basis of the claim of the parties. In these S.T.A. Nos. common ground of attack by the appellants-claimants is as follows:—

(1) Column 7 of Inam Fair Register clearly indicates the various payments to be made by the occupants of the land. From that it is evident that Kudiwaram right has to be conferred on the appellants predecessors-in title;

(2) There had been transactions including alienations right from 1894. Therefore, even assuming that what was granted was with reference to the large extent of sites and superstructures which consisted of both the Warams and the statutory presumption under Sec. 44 of the Tamil Nadu Act 30 of 1963 would apply, that has been successfully rebutted by transactions beyond 60 years reckoned from 1.4.1960;

(3) Kudiwaram right was brought to sale in Court auction by the respondent-Devasthanam itself in prior litigation and that had come to be purchased. Therefore, even assuming both the Warams were granted in favour of the respondent-temple, the rights of Kudiwaram got separated, and

(4) There are several receipts issued by the temple in which Kudikani rights have been specifically mentioned.

2. Lastly it is urged that Hijara Patta had been issued by the temple itself, which reiterates Kudiwaram in favour of the predecessors-in-title of the appellants. Therefore, the order of the Settlement Tahsildar and the confirmatory order of the Tribunal below cannot be supported in law and it requires to be set aside.

3. In meeting these arguments, the learned counsel for the respondents would urge that in column

21 it has been specifically stated that the grant has been made in favour of Devasthanam and to be confirmed in the name of the Devasthanam.

4. Mere issue of Hijara Patta will not militate against the grant of both Warams. Even assuming that Hijara Patta had been issued to Jaliniammal, no such patta has been produced.

5. Much reliance cannot be placed on the kist receipts, as laid down in Nainapillai Marakayar v. Ramanathan Chettiar (19 L.W. 259 P.C.). These receipts, in which Kudiwaram rights are claimed, can have no value to claim such a right.

6. As regards Kudiwaram being brought to sale in Court auction, that will not apply to all cases. It will apply to only one case. Therefore, there cannot be any generalisation. It is contended that, in any event, the concurrent orders do not require any interference. If at all, the matter has to be re-examined.

7. We will now take up each of the contentions in seriatim. Ex. R1 is the certified extract of Fair Inam Register for Title Deed No. 724 etc. That shows the lands in question formed part of Devadayam, tax free, permanent grant in favour of Vedaranyaswami Devasthanam of Vedaranyam. It is not the whole inam grant. Placing reliance on the various entries including columns 8 and 21, it was held that the grant consisted of both the Warams. In such an event, the statutory presumption under Sec.

44 of the Act would apply. But at this juncture we would like to point out that the various payments which the occupants were required to pay like 10 annas and 2 paise, 11 annas and 8 paise, 3 annas and 5 paise and 2 annas and 10 paise etc. do have the bearing to show that straightway one cannot invoke the presumption in disregard of all these entries. By no means, we are to be understood that we areur at once concluding the issue. It is our endeavor to point out that it is a matter for which due regard shall be given.

8. Ex. P1 is of the year 1894. What is stressed on behalf of the respondents is that it is Sarvamanyam of land on Vedaranyaswami Devasthanam. Here again the fact that there has been a dealing of the property covered by the Title deed as early as 1894 is of immense value.

9. Then again, at least in one case the Devasthanam, in execution of a decree obtained by it against one of the occupants, brought Kudiwaram

Click Here to Read the rest of this document