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(1956) 08 AP CK 0028
In the Andhra Pradesh High Court
Case No : Appeal No. 604 of 1951 and Transferred Appeal No. 1040 of 1952

Sri Madana Gopalaswamy Temple and APPELLANT

Others
Vs
Saride Manikyam and Others RESPONDENT

Date of Decision : 31-08-1956

Acts Referred:
Civil Procedure Code, 1908 (CPC) — Order 21 Rule 103, Order 21 Rule 63
Contract Act, 1872 — Section 56
Citation : (1956) 08 AP CK 0028
Hon'ble Judges : Viswanatha Sastri, J;Satyanaray Na Raju, J
Bench : Division Bench
Advocate : V. Parthasarathy, , Ch. Sankara Sastri, T. Veerabhadrayya For
Respondent Nos. 1 To 5,
Final Decision :

Judgement
Viswanatha Sastri, J.
These two appeals arise out of O. S. No. 65 of 1949 and O. S. No. 72 of .1950 on
the file of the Court .of the Subordinate Judge of Eluru. O. S. No. 65 of 1949 was
filed on behalf of Sri Madana Gopalaswa-myvaru of Ballipadu by its. Executive
Officer for a declaration of the title of the Plaintiffs and recovery of possession of 19
acres, 85 cents of land from the possession of Defendants 1 to 5 who claim a right
to the possession and enjoyment of the lands as remuneration for rendering
decades service in the temple and from the tenants Defendants 6 to;14.
This suit was dismissed by the Court below. O. S. No. 72 of 1950 was filed by four
Plaintiffs (Defendants 1 to. 3 and 5 in O.S. No. 65 of 1949) against the Executive
Officer for recovery of Rs. 360 being the value of the produce>of lands alleged to
be payable to the Plaintiffs but unlawfully collected by the Defendant.. This suit;
was substantially decreed by the Court below. The deity represented by the
Executive Officer is the Appellant from the decree in the two suits which were,
decided by a common judgment. In. this judgment the parties will be referred to
by their ranks in O. S. No. 65,of 1949.
2. It may be stated at outset that the Defendants admit that the title to the lands
in dispute vests in tire deity. The case of the Plaintiff is that Defendants 1 and 2
were engaged on a contractual basis for doing deadest (dancing) service in the
temple for such period as the Plaintiff might require and as wages or remuneration
for such service, Defendants. 1 and 2 were permitted to enjoy the income of the
lands in suit. The Plaintiff gave a notice, dated 12th August 1947, to Defendants 1
and 2 dispensing with their services and calling upon them to deliver possession of
the lands. When they declined to do so, the Plaintiff filed O.''P. No. 3 of 1948 u/s 78
of the Madras Hindu Religious Endowments Act for recovery of possession of the
lands but the Court dismissed the petition on a wrong view of the Jaw. Hence the
present suit.
Defendants 1 and 2 as well as Defendants 3 to 5 who claim to be members of their
families filed a written statement alleging that they and their ancestors were doing
dancing service in the temple hereditarily from time immemorial and that their
services were remunerated by the possession and enjoyment of the suit lands
"beyond the memory of man They further pleaded that their service was not
terminable at the pleasure of the Plaintiff and they could not be removed from
service so long as they performed it satisfactorily.
Though dancing service in temples was abolished by recent legislation, the
Defendants 1 to 5,were entitled to be in possession of the lands an3 enjoyment of
their income till appropriate proceedings were taken for recovering possession of
the lands. The Defendants also pleaded that the adverse order in O. P. No. 3 of
1948 was a bar to the maintainability of the suit.
3. The Court below arrived at the conclusion that the suit lands were devadasd
service inam lands, that this position had been accepted by the temple managers
throughout; that Defendants 1 and 2 and the other members of their families were
the present holders of the service inam; that the suit for recovery of possession of
the inam lands was barred by reason of the adverse order of the District Court in
O. P. No. 3 of 1948 filed by the Plaintiff u/s 78 of Madras Act II of 1927, and that
the Plaintiff had to get the rent fixed u/s 44A (2) of Act II of 1927 without seeking
to recover possession of the inam lands. The correctness of these findings was
challenged on behalf of the Executive Officer, the Appellant.
4. As often happens in these cases, the inam register furnishes the most authentic
account of the tenure of the lands. Exhibit A-l, dated 27th September, 1859, is the
extract from the inam register. In col. 2 the inam is described as "dharmadayam"
and in col. 3 its extent is given as 96 acres. In col. 8 the entry is "for the offerings
to the deity. Service is regularly performed" and in col. 10, the entry is
"permanent so long as the service is regularly, performed". The name of the
grantor or the original grantee was not known and no deed of grant was
forthcoming. In the accounts of faslis 1203, 1208 and 1217 as well as in the
accounts of fusli 1234, Sri Gopalaswami Varu''s name was entered as the owner of
the lands. Under the heading "Particulars of the present owner", the entry is
"Ballipadu, the same deity Manager Pemmaraju Lakshminarasayya''''. In column
21, the entry is as follows:
The inam being of an older date than fifty years can be confirmed permanently so
long as the services are regularly performed. In fasli 1208, there are only not
putties entered but in that of fasli 1217 and since there are 12. The whole is
entered in the name of the deity, but the particulars of enjoyment'' as shown by
the latest accounts and corroborated by old accounts are as follows:
P.T.M. (P. stands for putties and T. for tooms). 3-05-0 For the daily offering to the
deity enjoyed by the worshippers Appalacharyulu, etc. 2-07-8 For oil required
during festivals under the management of the trustees. 1-10-0 For the annual
festival under the trustee. 0-10-0 For "Stanachari Sri Venkateswarlu, etc.''* 0-10-0
For the singer. 0-05-0 For the gardener. 1-00-0 For the barber. 2-? 12-8 For the
musicians. 2-00-0 For the dancing girls.
12-00-0 It is convenient to give the title deed in the name of the deity. 9th
September, 1859. (Signed) P. Chent sala Rao. Deputy Collector. On 27th
September, 1859 the Inam Commissioner confirmed the inam ''to the manager for
the time being of the pagoda in one deed."
5. It was argued for the Defendants that the extent of two putties or 16 acres
allotted ''"for the daring girls" was a devadasd service inam granted to the
predecessors of Defendants 1-5 and that the inam was recognised by the
Government in 1859, though for the sake of convenience, a single title deed was
issued in the name of the deity for whose benefit the services enumerated in
column 21 of"Exhibit A-l were rendered. There is nothing in Exhibit A-l to show who
were the persons who were rendering devadasi service in 1859. It is, however,
clear from the evidence that Defendants 1 to 5 are not the descendants of those
who were rendering service in 1859 and that the office is not hereditary in the
family of Defendants 1 to 5 as alleged by them.
6. P. W. 1 the karnam of Balilpadu deposed as follows:
Sanyasi and Mahalakshmi were doing dancing services in the Plaintiff temple. They
and members of the''ir family were doing service for the last 40 years. Prior to
them, some Gunturi family was doing service in the temple. Manikyam (Defendant
1) is the daughter of Sanyasi. She has also sisters. Defendant 5 is the son of
Sanyasi, who is the son of Seshachalam. Mahalakshmi is the daughter of one
Venkatarayudu. Defendant 2 is the sister of Mahalakshmi. Defendant 3 is the
brother of Mahalakshmi who has other sisters and brothers and they have children.
They are engaged in other occupations.
7. P. W. 3 the stanachari of the temple for the last 45 years gave the following
evidence:
The first woman and man that used to do dancing service in the above temple to
my knowledge were Gunturu Manikyam and Venkataratnam, respectively. They
used to get a dancing party doing dancing service. They did service to my
knowledge for two years. Neither they nor others who came alter them were called
Devadasis. After they gave up service, nobody rendered service for 1& year. Then
Saride Seshachalam and her brother Venkatarayudu who came from Kaladhari,
used to render dancing service in the temple. After their death, the trustee
Dronamraju Suryanarayana took an agreement from one Sanyasi and
Mahalakshmi as per the original of Exhibit A-8. I attested it. They used to get a
party of eight in all. Plaintiff and their family members were not sufficient to make
the number and they used to get outsiders. Mahalakshmi is the daughter of
Venkatarayudu. Venkatarayudu has daughters who were not doing service, but
were engaged otherwise. Sanyasi is the son of Seshachalam. Seshachalam had
daughters who were not doing service.
8. The trustee or manager of the temple was making arrangements from time to
time for the performance of the dancing service in the temple and remunerating
the persons rendering the service by the produce of the lands in suit. Though the
produce of the lands was utilised by the temple trustee or manager for
remunerating those who performed dancing service from time to time the lands
themselves did not belong to them but only to the temple. This was evidently the
reason why the Government when it enfranchised-the inam from the condition of
service, issued the fresh title deed to the deity.
9. Exhibit A-2 relates to the proceedings in connection with the enfranchisement of
the inam in 1932, In column 5 relating to the description of the inam the entry is:
"Devadayam for dancing service".
In'' column 6 relating to "die name of the devadasi and her age", the entry is "no
devadasd is the owner of die land". Under column 8 relating to the name of the
temple for, die service in which die inam was granted or continued, the entry is
"Sri Madanagopaluswamy temple of Ballipadu village", The extent of the inam
lands to, be enfranchised is given as 19 acres 85 cents and die assessment as Rs.
69-8-0. In column JS, the following remarks of the Collector are found:
An extent of 19 acres 85 cents has been set apart for die dancing service in the
temple mentioned in column 8 and the trustee of the temple has been paying the
produce on this land to the working incumbents. As die devadasis are not the
owners of the land, die inam may be enfranchised without the imposition of the
quit-rent and a title deed in lorni No. 3 may be issued to die manager for die time
being of the temple of Sri ''Madanagopalaswamy, The present manager is
Dronamraju Suryanarayana Sarma of Ballipadu village.
10. The inam was enfranchised from the condition of service and a fresh title deed
was issued in the name of die temple by order of the Inam Com-''missioner, dated
10th July, 1932.
11. The Court below has not attached due weight to the enfranchisement of die
service inam by die Government in 1932 and has not realised the effect of such
enfranchisement of die rights of the fresh grantee in the lands that constituted die
emoluments of the office. Rasa Koundan and Another Vs. Janaki Ammal and
Another, related to a devadasi service inam which was enfranchised by die
Government, die enfranchisement being followed as in the present case, the grant
was of the land and not merely of die melwaram and the tenure attached to die
land. Satyanarayana Rao, J., observed:-
The Government, therefore, by the enfranchisement proceedings of 1931,
disannexed the inam, that is, both die warams, from the service to which they
were subject up to that date, the result of which was to place the land at the
absolute disposal of the Government. They could have done anything with needier
granted the kudiwaram and the melwaram to some other person or might have
continued the kudivaram in die previous holder, but subject to the payment of quit
rent,
a In the case or service inams granted or recognise and confirmed by the
Government, the legal theory og the common law has been that die ownership
rests with die Government, die office-holder merely enjoying the income as his
emoluments or wages. The right of the office-holder to the enjoyment of the
usufruct of: the land is co-extensive with the duration of- tenure of his office. If,
therefore, the office is detached from the land and there is an enfranchisement of
die service inam, it has die effect of a resumption and a regrant to the person
named in the fresh title-deed. The power of the Government to dispense with the
service, if no longer required and resume the service inam has always been
assumed to exist.
So long as the land is allowed to be enjoyed as remuneration for the performance
of the duties of the office, the office-holder has not got the full dominion veer it and
cannot alienate it. If he alienates the land, the Government is entitled to resume
die inam. The enfranchisement and re-grant under a fresh title deed extinguish die
antecedent rights of die service holders or dose claiming tinder diem. Applying
diese principles to the present case, the temple became the absolute owner of die
suit lands as a result of the enfranchisement and die issue of a fresh title deed in its
favour in 1932 as evidenced by Exhibit A.
It may be observed in this connection that die policy of the Government in
connection with enfranchisement of inams was that long possession held by an
inauidur should not be disturbed and that the kudiwaram should be continued in the
previous holder subject to the payment of quit rent. See Section 44-A (1) of Madras
Act II of 1927. In the present case, however the persons who were rendering
dancing service in 1932 were found to hive been recendy entertained by the
temple audiorities and their possession of the lands was that of lessees under a
temporary arrangement of recent origin. Hence, the fresh grant of the land after
enfranchisement was made to die temple and not to dose who were rendering
devadasd service at the time.
12. Strong reliance is placed on behalf of die Defendants on Exhibit A-8, dated 25th
January, 1922, entered into between the dine trustee of die temple and two
persons named Sradi Sanyasi and Saride Mahalakshmi who belonged to different
families and who then took up dancing service in the temple. Exhibit A-8 provides
for the payment of a "Naphain" worth Rs. 1,100 per annum to the two persons for
rendering "m''elam'''' service in the temple along with six other persons to be
provided by them on the occasions of the weekly, fortnighdy, mondily and order
festivals in the temple. These persons were to be at liberty to give up the service
after dire months'' notice.
If they carried on personal cultivation of the ands put in their possession they
agreed to execute a kadapa in favour of the trustee. They agreed to take the
income of the service inam lands of die extent of 19 acres 85 cents acknowledged
to belong to die deity, the said income to be paid to diem by die trustee on the
15th day of Phalguna each year. These two persons sued the trustee in O. S. No.
261 of 1929 and O. S. No. 28 of 1935, D. M. C, Tanuku, for die remuneration due
to them for several previous years. In O. S. No. 28 of 1935 a compromise decree
Exhibit A-3 was passed on 27th Feburary, 1937 under which they agreed to forego
die arrears of remuneration for 1934-1935 to 1936-1937 and die balance of the
decree amount in O. S., No. 261 of 1929. The trustee agreed to execute and
deliver a fresh agreement to the effect that so long as they performed the services
properly they should not be removed from service.
They also agreed to obtain a cowle from die trustee and enter into possession" of
the inam land of the extent of 19 acres 84 cents executing a proper kadapa in
favour of the trustee and enjoy the produce so long as they rendered service. It
was further provided that if the trustee removed them from service contrary to the
terms of Exhibit A-3, they should be paid 250 bags of paddy at the current market
value. In O. P. No. 47 of 1937 in the District Court of West Godavari, to which the
trustee of the temple and these two persons (Respondents 31 and 68) were parties
there was again a compromise'' Exhibit B-1, dated 28th November, 1941, die
material terms of which were:
1. The Respondents agree that the lands mea Tinder the schedule annexed to this
petition (items ; 28 to 32 of the main, petition B schedule) belong to the deity
absolutely and that they have no manner V. of right or interest in them.
2. That so long as the Respondents, 31 to 68 perform their duties properly, the
Petitioner or his successors in office shall not have any right to remove if them.''
3. That the Respondents 31 and 68 shall execute '' a lease deed in favour of the
Petitioner or his successors in office for the properties mentioned in the schedule
annexed hereto and the Respondents 31 and 68 shall enjoy the whole of the
produce of the lands in proportion of half for Respondent 31 and half for
Respondent 68 in lieu of their wages so long as they properly render the service.
The 32nd Respondent is only a tenant of the 68th Respondent and has no k right to
the property.
4. The Respondents 31 and 68 shall pay the taxes on the lands mentioned in the
schedule so long as they are not removed from office.
It will be observed that in Exhibits A-8, A-3 and f B-l Sanyasi and Mahalakshmi
purported to act only for themselves and not as representing their files or
''''successors", whatever those expressions might mean, with reference to persons
in their position. Nor were these agreements intended to be operative in any event
beyond the life-time of the two persons. Indeed it was only so long as they were
personally fit and willing to render service that they could take advantage of the
agreements. They had no interest in the land which belonged to the temple and
were entitled to its produce in equal moieties as wages for their service.
13. Sanyasi died some time before May, 1943. Thereafter Mahalakshmi and
Manikyam claiming to be a daughter of Sanyasi took possession of the lands. -
Exhibit B-4, dated 1st May, 1943, is a notice given by the Executive Officer of the
temple to these two persons to the effect that he had been directed by tire H. R. E.
Board to take possession of the lands and pay them a monthly salary. Exhibit B-5,
dated 3rd May, 1943, is their reply to the effect that the trustee had no right to the
possession of the lands so long as they were performing the service properly.
Mahalakshmi the survivor of the two persons who were parties to the agreements
Exhibits .A-8, A-3 and B-l also died somewhere in 1947 and the Executive Officer of
the temple called upon the persons in possession of the lands to surrender
possession to him by a fresh notice, dated 12th August, 1947. Manikyam the
daughter of Sanyasi and Neolachalam a sister of Mahalakshmi gave a reply Exhibit
A-5, dated 15th September, 1947, stating that as they were performing services
properly they could not be ''deprived of the possession of the lands and that in any
event the value of 250 bags of paddy should be ''paid to them before eviction as
per Exhibit A-3. The. Executive Officer then filed O. P. No. 3 of 1948 on the file of
the Court of the District Judge, West Goda-Vari u/s 78 of the Madras Religious
Endowments Act (2 of 1927; for recovery of possession of the suit lands imp
leading all persons who alleged some kind of relationship to Sanyasi and
Mahalakshmi and also the tenants in occupation of the lands. The learned District
Judge dismissed O. P. No. 3 of 1948 by his order Exhibit A-6. dated 13th August,
1948, on two grounds (1) that the certificate of the Hindu Religious Endowments
Board on the basis of which O. P. No. 3 of 1948 was filed had been issued without
notice to the Respondents and (2) that the only remedy of the Executive Officer of
the temple was to apply to the Government to direct the Collector to (ix the rent
payable on the lands. Thereafter, the Executive Officer filed the present suit for
declaration of the title of the temple and recovery of possession of the lands.]
14. It was argued for the Respondent that the order of the District Court in O. P.-
No. 3 of 1948 had become final and that the suit for recovery of possession was not
maintainable. Attention was drawn to paragraph 5 of the written statement of the
Defendants and to the relevant passages in the prior agreements Exhibits A-8, A-3
and B-l wherein the title of the temple to the lands was admitted and it was urged
that the prayer for declaration of die title of the deity to the lands was otiose, the
only real and effective relief sought, being recovery of possession of the lands
which was no longer available to the Plaintiff after the adverse order in O. P. No. 3
of 1948. It is a little surprising that this argument found ready and complete
acceptance from the Court below. A decision of the Rangoon High Court dealing
wide the effect of an order in insolvency proceedings and an early decision of the
Calcutta High Court dealing with the effect of a decision in proceedings u/s 26-J of
the Bengal Tenancy Act of the nature of a tenure, were relied upon for the position
that the order Exhibit A-6 made by the District Court u/s 78 of the Hindu Religious
Endowments Act was conclusive against the Plaintiff and barred the suit. As the
contention was seriously pressed before us, we are obliged to deal with it.
15. We are concerned with Section 78 as it stood in 1948 and 1949. It is
unnecessary to quote the* section which is now familiar. The proviso to Section 78
runs thus "Provided that nothing contained in this section shall bar the institution of
a suit by any persona aggrieved by an order under this section for establishing his
title to the said property." The origin and subsequent history of S. 78 have been
fully dealt with in the judgment of Subba Rao J., (as he then was) in Prattipati
Dandaiah and Another Vs. Nori Venkatrama Dikshitulu, Managing Trustee of Sri
Brahmeswaraswami Temple at Vathcharukur and Others, , and we need only state
that the proceeding under S, 78 is of a summary character and that an order of the
Court made under that section, while it is not open to appeal, is liable to be.
questioned and set aside in a regular suit instituted in a civil Court by any person
aggrieved by the order, be he the Executive Officer, Trustee, ex-trustee, office-
holder or ex-office-holder or servant or ex-servant of the temple. It was argued
that it was only the question of title and not the question of possession that could
be agitated in a suit under the proviso to Section 78. This will be reducing the
proviso to a farce for it avails a person nothing to get an abstract declaration of his
title to property if he to for ever precluded from getting into its possession and
enjoyment. The proviso to Section 78 is analogous to the provisions of Order 21,
Rule 63 and Rule 103 of the Code of CPC The expression ''title'' in the 1 proviso to
Section 79 includes) the right to the possession.
of the property which right has been denied to the Plaintiff by. the. order u/s 78 of
the Act. Section of the Act provides for a summary investigation as distinct from a
full and thorough trial of the ultimate right. The proviso to S. 78 allows a suit for
the establishment of title or right on which the Plaintiff bases his. claim to the
possession of the property from which he has been dispossessed or possession of
which has been denied to him by an order u/s 70 of the the Act. The objection to
tlie trial of the suit on the ground of res judicata by reason of tlie decision in O. P.
No. 3 of 1948 is devoid of substance and is overruled.
16. The further question is, whether the Plaintiff''s remedy is only by way of an
application u/s 44-A (2) of Madras Act (2 of 1927) and whether the suit for
possession is not maintainable as contended by the Respondents. We have already
discussed the nature of the service inam and the effect of the enfranchisement by
the Government and in that connection we have held that the service inam con-,
sisted of lands falling within Section 44-A (1) of the Act. Exhibit A-1, the extract
from the Inam Fair Register already referred to shows that the inam, though of
ancient origin, was continued by the Government and Exhibit A-2 shows that the
right of resumption vested in and was exercised by the Government. Sec- tion 44-
A ''(2) does not apply to service inams falling within: Section 44A (1). Section 44-A
(2) contemplates cases of permanent grants for doing devadasi service made by
zamindars after the permanent settlement or by ryotwair proprietors or by the
temples themselves. In such cases the Legislature appears to have thought that
the devadasi who was freed from the obligation to render service and allowed to
retain the land should pay a rent to be fixed by the Collector to the temple
concerned. Section 44-A (2) also contemplates cases where the grant by way of
remuneration for services is of a permanent nature though not made or confirmed
or continued by the Government as u/s 44A (1). In those cases also succession to
the office or service is governed by the personal law of the office-holder or service
holder or by the personal law as modified by legis lation. The land which is the
emolument or pro perty annexed to the service follows the service and the right to
the enjoyment of the land rests upon the right to the office the succession io which
de volves according to the personal law of the service holder. In the case of service
inams falling within Section 44A (2) the Legislature thought that it would bo fair
and equitable that the devadasi who was freed from her obligation to do service
should be allowed to enjoy the rent of the land as fixed by the Collector during her
life-time and thereafter the benefit of the rents should go to the temple for whose
bene fit the service was intended. Both Secttion 44-A (1) and (2) contemplated
service inam grants of a permanent and heritable ''character, the office and the
land de volving according to the personal law of the parties.
17. The arrangements between the trustee or Executive Officer of the temple and
Sanyasi and Mahalakshmi were contractual and intended to last so long as they
were fit for the duties and in no event beyond their life-time. the very fact thati in
there were successive arrangements between them from time to time under
Exhibit A-8 of 1932, A-3 1837 and B-l of 1941 with varying terms and conditions
shows that they were not of a permanent character. After the enfranchisement of
the service inam in 1932, the. temple acquired an absolute title to tlie lands freed
from the obligation of service and it was free to deal with the lands as it pleased. A
permanent alienation of temple lands by a trustee is prima facie a breach of trust
and no presumption can be made in favour of a breach of duty or mis conduct.
Nainapillai Marakayar v. Ramanathan Chettiar ILR 47 Mad 337 : AIR 1924 PC 65,
Under Exhibits A-3 and B-l which were subsequent to tlie enfranchisement, the
temple trustee or Executive Officer did not make a grant of the and or its produce,
in perpetuity to Sanyasi and Mahalakshmi so as to be heritable by their heirs-at-
law. The Court below has assiduously tried to prepare a pedigree on unconvincing
evidence. On the crucial point as to whether Sanyasi was devadasi qualified for the
office or whether he was a male there is a hapless conflict of evidence. In Exhibit
A-3 Sanyasi is described as the daughter of one Seshachalam while P. W. 1 and D.
W. 2 who have personal knowledge, agree that Sanyasi was the son and that is the
description in the plaint. There is nothing in Exhibits A-8, A-3 and B-l to suggest
that Sanyasi and Mahalakshmi were entering into an arrangement on behalf of the
members of their families or as representing them, as alleged by the Defendants.
On the other hand, they agreed to supply eight persons for the melam service in
the temple and share the re moderation payable according to the terms of Exhi bit
A-8. The arrangement was a contract for the supply of the service or labour of
eight qualified per sons for a stipulated remuneration. Exhibit B-l is the last of such
arrangements. It will be seen that under Exhibits A-8, A-3 and B-l, Sanyasi and
Maha lakshmi agreed to execute lease deeds in favour in the temple for the lands
and appropriate rent towards the wages due to them for their service. Exhibit A-8
refers to a lease given by the temple to Sanyasi and Mahalakshmi. Exhibit A-3 also
refers to a cowle by the temple and a kadapa by Sanyasi and Maha lakshmi in
respect of the suit lands. In Exhibits A 8, A3 and Bl the title of the deity as the
owner of the lands is clearly and unequivocally admitted and in Exhibits A8 and A3
the relationship between the deity and Sanyasi and Mahalakshmi is admitted to be
that of landlord and tenant. In these circum stances it is difficult to regard Exhibits
A-8, A-3 and B-l as service inam grants enuring for the benefit of the heirs of
Sanyasi and Mahalakshmi or for the members of their families. Exhibits A-8, A-3
and B-l are contractual arrangements which, at best, would last only during the
life-time of Sanyasi and Mahalakshmi. Where performance of a contract is required
to be in person and the personal qualifications of the promisors are the
consideration for the contract, the death or disablement of the promisors
discharges the contract and frees the other party, from liability. The contract here
was one for actual personal services and its performance by the promisors has
become impossible and the contract has therefore become void. None of the.
agreements provide for the continuance of the service of the enjoyment of the
rents of the lands by the heirs of Sanyasi and Mahalakshmi or the other members
of the families."
18. There is no agreement in writing between the'' Plaintiff and Defendants 1 to 5
as regards the terms on which they or any of them should render service. The
male Defendants cannot be degauss. It is extremely doubtful whether even the
female Defendants who are two in number could be described as devadasis. It is
however clear from the statement in paragraph 4 of the plaint and Exhibit ''B-3
that Defendants one and two were engaged by the Plaintiff to do service in the
temple after death of Mahalakslrmi which happened sometime after 1943 and
before 1947. (see Exhibits B-4 and A-5) and that . Defendants one and two were
allowed to enjoy the produce of the lands for a few years. If there was a grant by
the trustee of the temple lands or of any .interest in the lands in favour of
Defendants one and two, it should have been evidenced by a deed, but none is,
forthcoming. The arrangement was therefore a temporary one and was a contract
of service terminable at the pleasure of the parties, or on reasonable notice and
remunerated by the produce of the lands. u/s 3 of the Madras Devadasis Act (31 of
1947) the dedication of a woman as a devadasi whether before of after the Act is
declared unlawful and dancing in the precincts of a temple or in the presence of the
deity is declared unlawful. There is no doubt a saving clause in Section 3 (1) of the
Act to the effect that the operation of Section 44A of the Madras Hindu Religious
Endowments Act (2 of 1927) and the rights to which a devadasi is entitled under
that section are saved. We have held that Section 44A of the Act does not apply
and the Defendants are not within the protection of that section. Any arrangement
entered into between the Executive Officer and Defendants one and two for
rendering service by the latter in lieu of wages or remuneration would become void
when Madras Act (31 of 1947) came into force and made the rendering of dancing
service in a temple an offence punishable u/s 4 of that Act - see Section 56 of the
Contract Act.
19. For these reasons we reverse the decree of the Court below in O. S. No. 65 of
1949 and grant a decree for possession of the properties described in the schedule
to the plaint in favour of the Plaintiff. The suit is remanded to the Court below for
an enquiry into the amount of mesne profits claimed by the Plaintiff and the
passing of a final decree With reference to the profits ascertained to be payable to
the Plaintiff by all or any of the Defendants. The Appellant will have his costs both
here and in fee- Court below.
20. A.S.No. 1040 of 1952.-It is not proved that there was any arrangement
between the Plaintiffs and the Executive Officer of the temple under which the
Plaintiffs could claim the rent paid by the second Defendant to the Executive Officer
of the temple. According to the written statement of the Executive Officer only the
third Plaintiff and one Saride Manikyam,. not a party to the suit, rendered dancing
service in the temple under a temporary arrangement. The first Plaintiff is a minor
and Plaintiffs two and four are alleged to be members of the (family of Sanyasi and
Mahalalcshmi. In our judgment in A. S. No. 604 of 1951 we have held that Sanyasi
and Mahalakshmi had no heritable interest Jin the lands. In these circumstances, it
must be held that the Plaintiffs have not established their ''right to the amount
claimed in O. S. No. 72 of 1950 The is allowed and the suit is dismissed with costs
here and in the Court below.