PETITIONER: THE UNION OF INDIA Vs. RESPONDENT: RAM KANWAR AND OTHERS DATE OF JUDGMENT: 29/08/1961 BENCH: <NAME>, K. BENCH: <NAME>, K. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. CITATION: 1962 AIR 247 1962 SCR (3) 313 CITATOR INFO : RF 1972 SC1935 (9) RF 1973 SC 569 (13) RF 1979 SC1459 (67) RF 1980 SC1632 (31) R 1984 SC1503 (9,10) ACT: Letters Patent Appeal-Limitation for filing-Requisition and de-Requisition of building- Indian Limitation Act , 1908 , s.29 (2) Art. 151- Punjab High Court Rules, r. 4De once of India Rules, r. 75A-Requisitioning and Acquisition- any of Immovable Property Act, 7952 , ss. 3 , 24 (2)Requisitioned Land (Continuance of Powers) Act, 1947 (XIIII of 1947). HEADNOTE: A building belonging to the respondents was requisitioned by <ORG> under r. 75-A (1) of the Defence of India Rules originally for the purpose of occupation by a certain officer of <ORG> and afterwards by the officers of <ORG>. After the building was vacated by the said officers it was put in the possession of <ORG> which was a private dance and music school. The respondent's appeal to <ORG> for de-requisitioning the building having failed be filed a petition for mandamus for that purpose in <ORG> which was allowed. The appellant's appeal under the Letters Patent filed within 30 days under the rules of <ORG> but beyond 20 days as prescribed by the Limitation Act from the judgment of the single judge was dismissed as barred by time and also on the merits. On appeal by special leave. Held, that r. 4 of <ORG> Rules which allows Letters Patent appeals to be filed within 30 days from the date of the judgment of the single judge is a special law within the meaning of s.29(2) of the Limitation Act and such appeals may be filed within the said period of 30 days and not 20 days as prescribed by Art. 151 of the First Schedule of the Limitation Act <ORG> v. <ORG>, A.I.R. 1941 Lah. 57, approved. Held, further, that under s.24(2) of the Requisitioning and Acquisitioning of Immovable Property Act, 1952, which repealed the Requisitioned Land (Continuance of Powers) Act, 1947, a fiction was created to the effect that properties requisitioned under the earlier Act should be deemed to be requisitioned under s.3 of the Act. The effect of the fiction was that the requisition made under r. 75-A of the Defence of India Rules was a requisition tinder s.3 of the 1952 Act, that is, the 314 purpose mentioned in r. 75-A shall be deemed to be a public purpose of the <ORG> within the meaning of s.3 of the Act. In the present case as the building in question was being used for a purpose other than that for which it was originally requisitioned under r. 75-A it was liable to be de-requisitioned. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 322 of 1960. Appeal by special leave from the judgment and order dated November 21, 1957, of <ORG> (Circuit Bench) at Delhi in L.P.A. No. 4 of 1955.

<NAME>, Attorney-General of India, <NAME>, <NAME> and <NAME>, for the appellant. <NAME> and <NAME>, for the respondents Nos. 1 to 6.

<NAME>, <NAME> and <NAME>, for the respondent No. 7.

1961. August 29. The Judgment of the Court was delivered by <NAME>, J.-This appeal by special leave is preferred against the judgment of a division bench of <ORG> of <ORG> at Delhi confirming that of a single Judge of <ORG> issuing a writ of mandamus against <ORG> directing it to restore possession of the flat requisitioned by the said <ORG> to the respondents.

One <NAME> was the owner of Flat No. 5, Aggarwal Building, Connaught Circus, New Delhi; respondents 1 to 6 are his sons-and widow. By an order dated April 14, 1943, <ORG> requisitioned the said flat under r.75- A(1) of the Defence of India Rules for a period of one year from April 15, 1943. to April 14, 1944. The said flat was put in the occupation of one <NAME> of <ORG>. The period of requisition was extended from time to time, and finally by an order dated April 2, 1946, the flat was requisitioned from April 15, 1946, until further orders of <ORG>. After Mr. <NAME> vacated the flat, it was allotted to other officers. <NAME> requested the <ORG> from time to time to de-requisition the said flat for his personal use. He represented that he was suffering from heart trouble and was continuously keeping indifferent health, that two of his sons had got married, and that in those circumstances it had become impossible for him to continue to live in their small house in a narrow lane ; but <ORG> rejected his request on the ground that on surrender by the officers of <ORG> it would be required for allotment to Central <ORG> officers. <NAME> died on October, 24, 1951. It appears that four or five months in 1947 the flat was vacant and thereafter it was occupied by refugees from West Pakistan. It was afterwards given to the present respondent No. 7, <NAME>. On November 4,1952, respondent No. 1 again requested the <ORG> to de- requisition the flat mainly on the ground that the said flat was not in use of the officers of <ORG> but was put in possession of <NAME>, which was a private dance and music school. As no reply was given to that request, the said respondent sent a reminder on June 26, 1953, and to that he received a reply to the effect that "the matter is receiving attention and further communication will follow in due course." On September 16, 1953, the <ORG> informed the first respondent that he could execute a lease deed in favour of the <ORG> in respect of the said flat. As the appellants did not put the respondents in possession of the said flat, they had no alternative but to file a petition for a writ of mandamus in <ORG>. The petition was heard by <NAME>, J., and the learned Judge issued a writ of mandamus on October 19, 1954, directing the appellants to put the respondents in possession of the flat. Against the said order, on November 26, 1954, the appellants filed a Letters Patent appeal in the Circuit Bench of <ORG> at Delhi. The appeal was filed within 30 days from the date of the said order after excluding the time taken for obtaining certified copies of the necessary documents but more than 20 days thereafter. The appeal was heard by a division bench of the said. <ORG> consisting of the Chief Justice and <NAME> J. The learned Judges held that the appeal was filed out of time and that there was not sufficient reason for excusing the delay. They also went into the merits of the case and agreed with <NAME>, J., that a case had been made out for issuing a writ. With the result that the appeal was dismissed. Hence the present appeal.

Learned Attorney-General, appearing for the appellants, contends, that the Letters Patent appeal, it having been filed within 30 days from the date of the judgment of Falshaw, J., was within time, and that, in any view, having regard to the fluid state of the law on the question whether the and prescribed by the Limitation Act or the rule by <ORG> would govern that appeal, there Was sufficient cause for excusing the delay. On the merits he argues that the requisition made under r.75-A of the Defence of India Rules (hereinafter called the Rules) was continued unders.3 of the Requisitioned Land (Continuance of Powers) Act, 1947 (Act No. 17 of 1947) (hereinafter called the 1947 Act), whereunder the appropriate Government was given the power to use or deal with a requisitioned land in such manner as may appear to it to be expedient, that in exercise of the said power the said Government put <NAME> in possession of the same, and that under s.24(2) of the Requisitioning and Acquisitioning of Immovable Property Act, 1952 (hereinafter called the 1952 Act), the said requisition shall be deemed to be property requisitioned under s.3 of the said Act and that under the said section the said purpose must be deemed to be a public purpose, being the purpose of the <ORG> and, as that purpose did not cease to exist, the respondents are not entitled to ask for de-requisition of the said flat.

Mr. <NAME>, learned counsel for the respondents, seeks to sustain the order of <ORG> both on the question of limitation as well as on merits. Three questions fall to be considered in this appear, namely (1) what is the period of limitation prescribed for an appeal against an order of a Single Judge of <ORG> to a division bench of the same <ORG> ? (2) if the appeal was preferred out of time, was there a sufficient cause for excusing the delay in preferring the appeal ? (3) are the respondents now legally entitled to ask <ORG> to de-requisition the said premises under the 1952 Act ?

To appreciate the first contention it is necessary to read the relevant provisions of the Limitation Act , the clauses of the Letters Patent and the rules made by <ORG>.

The Indian Limitation Act , 1908.

" Section 29 . (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule......"

The First Schedule Description of appeal Period of Time from of which limitation period begains to run

151. From a decree or order of any of <ORG> at Fort William, Madras and Bombay, Twenty The date of or of the <ORG> days the decree or order of Punjab in the exercise of its original jurisdiction.

LETTERS PATENT FOR <ORG>.

Clause 27. And WE do further ordain that it shall be lawful for <ORG> at Lahore from time to time to make, rules and orders for regulating the practice of the <ORG> and for the purpose of adopting as far as possible the provisions of the Code of Civil Procedure, being an Act, No. V of 1908, passed by the Governor-General in <ORG> and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction respectively. Clause 37. And We do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative <ORG>, and also of the Governor-General in <ORG> under section seventy-one of the Government of India Act, 1915; and also of the Governor-General in cases of emergency under section seventy-two of that Act, and may be in all respects amended and altered thereby. Rules and Orders of the High <ORG> of Punjab. Rule 4: No memorandum of appeal preferred under clause 10 of the Letters Patent shall be entertained if presented after the expiration of 30 days from the date of the judgment appealed from, unless the admitting Bench in its discretion, for good cause shown, grants further time for the presentation.

It is clear from the aforesaid provisions that while under Art. 151 of the Limitation Act a period of 20 days is prescribed for preferring an appeal from an order of <ORG> in the exercise of its Original Jurisdiction, under r. 4 of High <ORG> Rules for an appeal under cl. 10 of the <ORG> a period of limitation of 30 days is provided. If Art. 151 applies, the <ORG> appeal in the present case was clearly barred. But if r. 4 could be invoked, then the appeal was well within time. The combined effect of the provisions may be stated thus: Under cl. 27 of the <ORG>, the High <ORG> of Judicature of Lahore has the power to make a rule prescribing the period of limitation in respect of appeals from orders made by that <ORG> in exercise of its Original Jurisdiction to a division bench of that High <ORG>. Under el. 37 thereof, the provisions of the <ORG> are subject to the legislative powers of the Governor-General in <ORG> and, therefore, any rule made in exercise of a power conferred under the <ORG> must necessarily be subject to the provisions of the Limitation Act which is a law made by the <ORG>. Article 151 of the Limitation Act prescribes the period of limitation of 20 days for preferring an appeal against an order made by the High <ORG> in exercise of its original jurisdiction, and if there is no other limitation on that section, r. 4 of the High <ORG> Rules must give way to the said Article. But s. 29(2) of the Limitation Act limits the scope of that section, for it says that where a special or local law prescribes for an appeal a period prescribed therefore in the said Schedule, the provisions of s. 3 shall apply as if such period were prescribed therefor in that Schedule, that is, if there is a special or local law prescribing a period of limition, it will be deemed to be the period of limitation prescribed by the First Schedule to the Limitation Act in respect of an appeal covered by that rule. To state it differently, if r. 4 is a special law, the Limitation Act itself must be deemed to prescribe the period of limitation mentioned under that rule for the class of cases covered by the said rule, and to that extent the rule derogates from Art. 151 of the First Schedule to the Limitation Act . Article 151 must be read subject to the special law. In this view, the argument that cl. 37 of the <ORG> makes the rule made by the High <ORG> subject to the Limitation Act and, therefore, that Art. 151 shall prevail over r. 4 has no force. Briefly stated, the legal position is this: Under el. 27 of the <ORG>, the High <ORG> has power to make a rule prescribing the period of limitation for a <ORG> appeal against an order of a single Judge made in exercise of the original jurisdiction of the High <ORG>, and by reason of cl.37 thereof, the said rule is subject to the provisions of the Limitation Act ; but the Limitation Act itself saves the operation of the said rule. With the result that r. 4 applies to such an appeal, whereas Art. 151 of the Limitation Act will govern appeals not covered by r. 4 or appeals, from orders made by other High <ORG>s in exercise of their original jurisdiction, if no rule similar to r. 4 is made by the said High <ORG> or High <ORG>s. In the premises the only question to be decided is whether r. 4 is a special law within the meaning of s. 29(2) of the Limitation Act. Rule 4 is made by the High <ORG> in exercise of the legislative power conferred upon the said High <ORG> under cl. 27 of the <ORG>. As the said rule is a law made in respect of special cases covered by it, it would certainly be a special law within the meaning of s. 29(2) of the Limitation Act.

This view was accepted by <ORG> in <CITATION> , punjab Cotton Press Company, Ltd. (in liquidation) (1). There, a full bench of that High Court held that the statutory rules framed by the (1) A.I.R. 1941 Lahore 57 (F. B.).

<ORG> under cl. 27 of the Letters Patent under the authority delegated to it by His Majesty who, in turn, was acting under the powers conferred on him by Act of Parliament, are a "special law". We agree with this view. It is not necessary to deal with other decisions cited at the <ORG>, for in none, of them the scope of s. 29 of the Limitation Act was considered. Indeed, Mr. <NAME> has not contended that r. 4 is not a special law within the meaning of s. 29 of the Limitation Act. If so, it follows that under r. 4 an appeal could be filed within 30 days from the date of the order of Falshaw, J., and the appeal having been filed on the twenty-third day, it was well within time.

In this view, the second question does not fall to be considered in this appeal.

On merits, the question turns upon the construction of the relevant provisions of the Defence of India Rules, the 1947 Act and the 1952 Act. For easy reference and comparison, the relevant provisions may be read at one place.

The Defence of India Rules Rule 75-A. (1) If in the opinion of <ORG> or <ORG> it is necessary or expedient so to do for securing the defence of British India, public safety, the maintenance of public order or efficient prosecution of the war, or for main- taining supplies and services essential to the life of the community, that Government may by order in writing requisition any property movable or immovable, and may make such further orders as appear to that Government to be necessary or expedient in connection wit h the requisitioning.

x x x x x x (2) Where the Central Government or <ORG> has requisitioned. any property under sub-rule (1) that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or ",here the owner is not readily traceable or the ownership is in dispute, by publishing in the official <ORG>, a notice stating that <ORG>, as the case may be, has decided to acquire it in pursuance of this rule. , The Requisitioning and Acquisitioning of Immovable Property Act, 1952 (XXX of 1952) Section 24 . (1) The Requisitioned Land (Continuance of Powers) Act, 1947 (XVII of 1947), the Delhi Premises (Requisition and Eviction) Act , 1947 (XLIX of 1947) and the Requisitioning and Acquisitioning of Immovable Property Ordinance, 1952 (III of 1952) are hereby repealed.

(2) For the removal of doubts, it is hereby declared that any property which immediately before such repeal was subject to requisition under the provisions of either of the said Acts or the said Ordinance shall, on the commencement of this Act, be deemed to be property requisitioned under section 3 of this Act, and all the provisions of this Act shall apply accordingly.

Section 3 . (1) Where the competent authority is of opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the Union, and that the property should be requisitioned, the competent authority-

(a) shall call upon the owner or any other person who may be in possession of 'the property by notice in writing specifying therein the purpose of the requisition to show cause, within fifteen days of the date of the service of such notice on him, why the property shall not be requisitioned ;

x x x x Section 6 . (1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible, restore the property in as good a condition as it was when possession thereof was taken subject only to the change caused by reasonable wear and tear and irresistible force :

Provided that where the purpose for which any requisitioned property was being used ceased to exist, <ORG> shall, unless the property is acquire under section 7 release that property, as soon as may be, from requisition.

The Defence of India Rules were issued under the Defence of India Ordinance, 1939, which was repealed by the Defence of India Act, 1939, but the said rules were kept alive by virtue of the provisions of s. 21 of the said Act. Under r.75-A of the said Rules, the power to requisition a property was conditioned by the purposes for which it could be so requisitioned, though it was left to the subjective satisfaction of the <ORG> to decide whether it was necessary or expedient to do so. After requisition, <ORG> was authorized to deal with the property in such manner as might appear to it to be expedient. The expediency in the context can only mean expediency in relation to the purposes for which the property was requisi- tioned. The wide import of the word "expedient" in Sub-s. (2) must necessarily be limited to the purposes under sub-s. (1) as otherwise we would be attributing to the <ORG> an intention to confer a power on the <ORG> to requisition a property on false pretenses. Act 17 of 1947 was enacted to provide for the continuance of certain emergency powers in relation to land which, when the Defence of India Act expired, was subject to requisition effected under the rules made under that Act. "Requisitioned land" was defined to mean an immovable property which at the commencement of the said Act was subject to any requisition effected under the said rules. Under s. 3 thereof notwithstanding the expiration of the said Act and the rules made thereunder, the requisitioned land was continued to be subject to requisition until the expiry of the said Act, and it authorized the appropriate <ORG> "to use or deal with any requisitioned land in such manner as may appear to it to be expedient". The object of the Act was only to continue the. requisition after the expiry of the life of the Defence of India Act and not to enlarge the powers of the <ORG> in respect of the requisitioned land. The land requisitioned under the Ordinance continued to be subject to the requisition. The expression "continue" clearly brings out the idea that the scope of the section was only to give a further lease of life to the order which otherwise would have expired. The words "may use or deal with any requisitioned land in such manner as may appear to it to be expedient" were only a repetition of the words in r. 75-A (2) of the Rules conferring authority on the <ORG> to do certain things in respect of requisition ; and the scope of the authority under s.3 of the 1947 Act must be similar to that under r.75-A(2) of the Rules. Under s.24 (1) of the 1952 Act, the 1947 Act was repealed. Under sub-s. (2) thereof, it was provided that on the commencement of the Act the properties which were subject to requisition under the provisions of the earlier Act shall be deemed to be property requisitioned under s.3 of the Act and that all the provi- sions of the Act shall apply accordingly. Relying upon the deeming clause, it is contended that the requisition of the land and the user of the same by the <ORG> under the 1947 Act should be deemed to be a requisition made, under S. 3 of the 1952 Act, for a public purpose, being the purpose of the <ORG>, and as that purpose, namely user by <ORG>, had not ceased, the appellants were not bound to de-requisition under s. 6 of the Act. But the fiction created by s. 24 (2) of the Act would operate only upon the requisition already made. The fiction could not validate any illegal act of the <ORG>. Therefore, the question is what was the effect of the earlier requisition under the Rules as well as under the 1947 Act. If the requisition originally made was for purposes mentioned in r.75 of the Rules and continued under s.3 of the 1947 Act only for the said purposes, under s. 3 of the 1952 Act the requisition of the property made for the said purposes would be deemed to be a requisition for a public purpose being a purpose of the <ORG>. But the validity of the requisition could be judged on the basis of the pre-existing statutes and not on the basis of the provisions of the sections of the 1952 Act. The result is that the requisition of a property made for public purposes under r.75-A of the Rules would be deemed to be a requisition under s. 3 of the Act and all the provisions of the Act would apply accordingly. It is said that under the Rules a requisition need not have been made for a public purpose ; but the express provisions of r, 75-A of the Rules negative this Contention. Though no notice stating the purpose is contemplated under r. 75-A of the Rules, the requisition could have been made only for the four public purposes mentioned in r. 75-A of the Rules. We have pointed out that the requisition for the said purposes only continued under the 1947 Act. The purposes for which it was requisitioned must, therefore, be deemed to be the purposes mentioned in r. 75-A of the Rules. Even if s. 5 of the Act was excluded on the ground that no notice was issued under r. 75-A of the Rules the proviso to s. 6 of the Act would be attracted. Under that proviso, where the purposes for which any requisitioned property was being used ceased to exist, <ORG> shall release the property, as soon as may be, from requisition. In the present case, on the facts it is manifest that the flat was not used for any of the purposes for which it was requisitioned for a number of years ; and indeed, when the Act came into force, it was used only for locating <ORG>, which is clearly, not one of the purposes for which the flat was requisitioned. If so, it must be held that the purpose for which the property was requisitioned ceased to exist and the respondents have acquired a right to be put in possession thereof under the said proviso.

Even so, the learned Attorney-General contends that the purpose for which the building is now utilised, namely for <ORG>, is a public purpose' being the purpose of the <ORG>, within the meaning of s. 3 of the Act, and, therefore, the respondents are not entitled for de- requisition under the proviso to s. 6 of the Act. It is argued that every <ORG> purpose is a public purpose. The argument proceeds that under the Constitution the <ORG> may make laws with respect to any of the matters enumerated in List I of the Seventh Schedule to the Constitution, and also in respect of any matters enumerated in List III thereof, that under Art. 73 the executive power of the <ORG> extends to the said matters and that, therefore, the requisition of property made for any of the purposes connected with such matters, whether in regard thereof laws were made or not, would be a requisition for a public purpose, being a purpose of the <ORG>, within the meaning of B. 3(1) of the 1952 Act. In support of this con- tention reliance is placed upon the decision of this court in <CITATION> (1). There is a fallacy underlying this argument. The (1)  2 S. C. R. 867.

effect of the fiction is that the requisition made under r. 75-A of the Rules is a requisition under s. 3 of the 1952 Act, that is, if the requisition was made for purposes mentioned in r. 75-A of the Rules, it would be deemed to be one for a public purpose, being the purpose of the <ORG>, within the meaning of s. 3 of the 1952 Act. The criterion is not, therefore, whether a particular purpose for which a building was used when the Act came into force was a public purpose, being the purpose of the <ORG>, within the meaning of s..3 of the 1952 Act, but whether it was requisitioned for one of the purposes mentioned in r. 74-A of the Rules. If those purposes ceased to exist, the proviso to s. 6 of the 1952 Act made it obligatory for the <ORG> to release the property. As the flat was being used for a purpose other than that for which it was requisitioned, the respondents were entitled to be put in possession thereof. In this view, we do not propose to express our opinion on the validity of the contention raised by the learned Attorney-General based upon the decision of this Court. In the result the appeal fails and is dismissed. Costs will be governed by the order dated 11-8-61.

Appeal dismissed.


JUDGMENT

1. The decision of this Rule turns upon an interesting point of law, involved in the question whether or rot the third defendant was liable for the debt due to the plaintiff from the first two defendants. It appears that the first two defendants borrowed a sum of money from the plaintiff on a promissory note executed on the 6th January 1913 They transferred their properties to the third defendant on the 31st January 1913 and on that very date the third defendant executed an agreement in favour of his vendors expressly undertaking to pay to the plaintiff his dues out of the consideration money retained in his hands. The plaintiff instituted this suit on the 4th January 1916 against his debtors as also the third defendant. The <ORG> Judge has degreed the suit against all the defendants.

2. On behalf of the third defendant it is urged in this Court that there was an interpolation in the deed of agreement executed by him and that in fact the recital as to the debt due to the plaintiff from the first two defendants was inserted. With out his knowledge after the execution but before the registration of the document. This defence has not bean bilieved by the Court below and upon the findings of the <ORG> Judge it is impossible for us to examine this question of fact. We most consequently proceed on the assumption that the third defendant did undertake to pay the plaintiff his dues out of the consideration money in his hands. The question is, whether the plaintiff is entitled to enforce the agreement made between the third defendant and his vendors.

3. On behalf of the plaintiff reliance is placed upon the decision in <NAME>. <NAME> Sadhan Handed) 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603, which is an authority for the proposition that the rule enunciated in <NAME> v. Atkin-son (1861)1 B. & S. 393 : 30 L.J.Q. B. 265 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 124 R.R. 610, is not applicable in this country and that an agreement may in certain circumstances be enforced by a stranger thereto that is in what may be briefly described as cases of trust, quasi-contract, or near relationship see <CITATION> 5 Ind. Cas. 565 : 11 C.L.J. 364 : at P. 368 : 14 C.W.N. 470 : 37 C. 449, The third defendant however seeks to distinguish that case on the ground that there the arrangement between the debtor transferor and the transferee was communicated to the creditor whereas there is nothing to show that in the present case the arrangement between the first two defendants and the third defendant was ever brought to the notice of the plaintiffs by either of them. In our opinion the distinction mentioned is not material and the principle which under-lies the decision in <NAME> v. <NAME> : Ram Sadhan Mandal 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603, applies equally to the present case. In that case there was a contention that the plaintiff was entitled to succeed on the ground of novation of contract, and from this point of view, stress was laid upon the fact that the arrangement between the transferor and transferee bad been communicated to the creditor. This Court, however, held that notwithstanding such communication there was no novation of contract and that the suit must be deemed to have been instituted on the original debt. That this is the true view of the situation is clear from the decision in <NAME> v. <NAME> (1817) 3 Mer. 582 : 17 R.R. 136 : Preface V : 36 E.R. 224, which was quoted with approval and followed in <NAME> v. cliuni Lil Ghose : Rim Saihnn Mandal 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603, The circumstances in that litigation were as nearly as possible, identical with those of the case by fore us There P transferred his properties To W who It May Concern:, who retained the consideration money in his hands and agreed to apply the sum in satisfaction of a debt due to G from P and to appropriate the balance only in satisfaction of his own dues.

4. The arrangement was intended to be communicated to <OR<OR<ORG>>>, buy as a matter of fact was not brought to his notice. IF on the other hand, communicated to <OR<OR<ORG>>> an untrue version of what had happened and as the report says it was by a mere accident that <OR<OR<ORG>>> came to know of the arrangement between <OR<ORG>> and <OR<ORG>>.<OR<OR<ORG>>> along with instituted a suit to recover the debt from V. The claim was resisted on the ground that the consideration had not moved from <OR<OR<ORG>>>, who was a stranger to the agreement between <OR<ORG>> and <OR<ORG>> and was entitled to, no benefit the under. Sir <OR<ORG>>illiam <OR<OR<ORG>>>rant, M.R., overruled this contention he conceded that the action might not have been maintainable in <OR<ORG>>, because the engagement was made to <OR<ORG>> and not directly to <OR<OR<ORG>>> and the consideration was furnished by <OR<ORG>>. Bat he proceeded to hold that although, no party to the contract had an equitable right through the mediation F the agreement to <OR<ORG>>, as shown by a decision of Lord <NAME> to the same effect. There had been no communication of the agreement bat wean <OR<ORG>> and <OR<ORG>> to <OR<OR<ORG>>>, and no sum communication was necessary because the claim was not based on novation of contract on the allegation that by mutual arrangement of all the parties, a new agreement as between IV and had been substituted in supersession of the original agreement between <OR<ORG>> and <OR<OR<ORG>>>, The decision was based on the ground that <OR<ORG>> was in essence a trustee of the money in his hands for the benefit of <OR<OR<ORG>>>, who could clearly enforce it whether or not the arrangement had been communicated to him by <OR<ORG>> or <OR<ORG>>.

5. We must hold, consequently, upon principle as also upon authority that the plaintiff is entitled to enforce his claim as against the third defendant The Rule is discharged with costs one gold mohur.


JUDGMENT <NAME>, C.J.

1. This is a reference in respect of the assessment year 1944-45. The assessee was held to be a resident for that year. The previous year or the accounting year in respect of this assessment year was the Maru year 1999-2000 beginning with November 9, 1942. The assessee commenced doing business in Bombay from that date and there was a credit entry in his books of account on that very day for a sum of Rs. 51,000. On January 8, 1943, there was another credit entry for a sum of Rs. 1,50,000. In that year the assessee suffered a loss of Rs. 73,779 in his business which he was carrying on at Indore. The two questions which are submitted for our determination are concerned with these two sums of Rs. 2,01,000 and Rs. 73,779. With regard to the sum of Rs. 2,01,000 the assessee's case before the <ORG> was that he was adopted by his uncle many years ago, that his uncle left a large fortune, and it was out of this large fortune that this amount was brought into British India. The Appellate Assistant Commissioner taxed this amount of Rs. 2,01,000 under Section 4(1)(b)(iii) of the Indian Income-tax Act. It was found by him that after the death of his adoptive uncle the assessee did business at Indore and he failed to produce his books of account relating to that business. The <ORG> to which an appeal was preferred from the decision of the Appellate Assistant Commissioner also held that the sum of Rs. 2,01,000 represented remittances and profits received in British India by the assessee during the year and they were rightly taxed under Section 4(1)(b)(iii) . With regard to the sum of Rs. 73,779 the <ORG> held that that loss could not be set off against the sum of Rs. 2,01,000. The first question that we have to consider is whether the remittance of Rs. 2,01,000 out of profits made by the assessee in the years preceding the Maru year 1999-2000 as a non-resident could be included under Section 4(1)(b)(iii) of the Indian Income-tax Act in his total income of the year of account in which he was a resident in British India. It will be noticed that the point sought to be taken up by the assessee in this question is that he was a non-resident during the year when the profits and the income of the business arose in the Indian State. Now this particular question was included in the grounds of appeal before the Appellate <ORG>, but it was not argued before them, and a question of considerable importance affecting the jurisdiction of this <ORG> has been raised by the Advocate General that, as this question was not dealt with by the <ORG>, it was not open to the <ORG> to raise it and it is not open to us to decide it. In my opinion it is necessary clearly to re-state the jurisdiction of this <ORG>. This is not a <ORG> of Appeal. This <ORG> merely exercises an advisory jurisdiction. Its judgments are in the nature of advice given on the questions submitted to it by the <ORG>. Its advice must be confined to questions referred by the <ORG> to this <ORG> and those questions must be questions of law which must arise out of the order made by the <ORG>. Now, looking at the plain language of the section apart from any authority, I should have stated that a question of law arose out of the order of the <ORG> if such a question was apparent on the order itself or it could be raised on the facts found by the <ORG> and which were stated in the order. I see no reason to confine the jurisdiction of this <ORG> to such questions of law as have been argued before the <ORG> or are dealt with by the <ORG>. The section does not say so and there is no reason why we should construe the expression "arising out of such order" in a manner unwarranted by the ordinary grammatical construction of that expression. This <ORG> has no jurisdiction to decide questions which have not been referred by the <ORG>. If the <ORG> does not refer a question of law under Section 66(1) which arises out of the order, then the only jurisdiction of the <ORG> is to require the <ORG> to refer the same under Section 66(2) . It is true that the <ORG> has jurisdiction to resettle questions of law so as to bring out the real issue between the parties, but it is not open to the <ORG> to raise new questions which have not been referred to it by the <ORG>.

2. The Advocate General has strongly relied on two decisions, one of <ORG> and the other of <ORG>, in support of his contention that inasmuch as although this particular question with regard to Section 44(1)(b) was raised in the grounds of appeal but was not dealt with by the <ORG>, the <ORG> was wrong in referring it to <ORG>. The first decision is of <ORG> (<NAME> v. Commr. of Income-tax (1935) 3 I.T.R. 112). That was a ease under the old Act and an application was made under Section 66(2) asking the Commissioner of Income-tax to state a case on certain points. With regard to the second question <ORG> took the view that although a question of law might be involved, as the question was not raised in the appeal to the Assistant Commissioner, the question did not arise out of the order under Section 31 of the Act and the petitioner had no right to demand that the Commissioner should refer that question. <ORG> dealt with the question under the present Act in <CITATION> (1947) 15 I.T.R. 442, and took the view that a question of law can be said to arise out of an order of the Appellate <ORG> only if such order discloses that the question was raised before the <ORG>. It will be noticed that what this means is that not only the question should be raised before the <ORG> but also that the order itself should disclose that the question was so raised. With great respect if the view taken by <ORG> were right, it would amount to this that if an assessee appearing in person or an assessee who was wrongly advised did not think fit to raise a question of law or argue it before the <ORG>, then although such a point of law was apparent on the face of the order or arose on the facts already found by the <ORG>, the assessee would be debarred from raising that question before the <ORG>, The decision of <ORG> would also result in this extraordinary situation. An assessee may raise a question and argue it before the <ORG>, but if the <ORG> thought fit to ignore that argument and not to refer to that point of law in its order, then the <ORG> would have no jurisdiction to call upon the <ORG> to refer that question of law to <ORG>, It is true that the Income-tax Act is a very technical statute, but I see no reason why when the plain grammatical construction of the section does not make it necessary to come to that conclusion it is necessary to do so and arrive at such an anomalous result. It is not as if it would be open to one party or the other to raise any question before this <ORG> merely because such a question arose out of the order of the <ORG>. The proper safeguard is that this <ORG> cannot advise on any question unless it has been referred to it by the <ORG> or unless we require the <ORG> to state a question of law for our consideration. A similar attempt was made to restrict the jurisdiction of this <ORG> under the old Act and it was repelled by this <ORG>, and the case is reported in <CITATION> (1934) 37 Bom. L.R. 89 : S.C. 3 I.T.R. 152. Under the old Act it was for the Commissioner of Income-tax to formulate the questions of law arising out of the order made by the Assistant Commissioner, and in the case which came before <NAME> and <NAME> the Commissioner refused to state a case taking the view that the question of law as formulated by the assessee did not arise out of the order, and, therefore, no question arose of stating the case. The assessee then made an application under Section 66(3) asking this <ORG> to require the Commissioner to state the case. It was then argued that this <ORG> had no jurisdiction to direct the Commissioner to state the case arising on a question of law not formulated before him. Various decisions of other High <ORG>s were cited in support of that view. <NAME>, in delivering the judgment, refused to agree with the views of the other High <ORG>s on this point, and he expressly disagreed from the view of the full bench of the Rangoon High <ORG>, taking the view that their view seemed to restrict the powers of <ORG> in a manner not authorised by the Act. In my opinion the present attempt of the Advocate General is also to restrict the powers of <ORG> in a manner not authorised by the Act; and to confine the questions of law arising out of the order merely to those questions of law which have been raised before the <ORG> or dealt with by the <ORG> is in my opinion restricting unauthorisedly the advisory jurisdiction of this <ORG>. <NAME> had to consider a similar question in <ORG> v. Comr. Income-tax (1947) 49 Bom. L.R. 620 : S.C. 15 I.T.R. 319, F.B. The question before the <ORG> (<NAME> and <NAME>) was whether certain deductions were permissible in respect of the assessees' income from property. Now in the assessees' appeal to the Appellate <ORG> one of the grounds taken was that on the proper construction of Section 9 the amount paid for the municipal taxes and Urban Immoveable Property Tax should be allowed as a deduction in computing the income from property. <NAME> pointed out that that contention could cover two grounds : one, that the taxes should be deducted in the first instance before arriving at the bona fide annual value within the meaning of Section 9 , and the other, that the annual value of the property being ascertained those were permissible deductions under heads (iv) and (v) of Sub-section (1). The Commissioner argued that the first aspect was never contemplated or urged by the assessee and was, therefore, not dealt with. <NAME> stated in his judgment that there appeared force in that contention although he took the view that the assessee was in a position to raise that contention by the ground of appeal formulated by him. Therefore, <NAME> took the view that, although the contention was put toward as a ground of appeal, it had not been dealt with by the <ORG>. If the Advocate General were right, this <ORG> had no jurisdiction to consider that contention at all. But what the <ORG> there did was to send the reference back to the <ORG> and invited it to rexpress its opinion on that aspect of the contention and raise a proper question of law on that point.

3. I may point out that in the case before us the position is more simplified because although the point was not dealt with by the <ORG> the <ORG> has actually raised a question of law and has referred it to us for our opinion. Under Section 66(5) we have to decide the questions of law raised and submitted to us. I do not see how it is open to the Advocate General once a question of law has been raised by the <ORG> to ask us not to give our opinion on it in view of Section 66(5) . It may be that a particular question may be irrelevant or unnecessary, and we may refuse to give our opinion on such a question, but I do not think that it is competent to a party to challenge the jurisdiction of this <ORG> to answer a question which has been raised by the <ORG>. The <ORG> wants our advice on a particular question of law and it is our statutory duty to give that advice to the <ORG>.

4. Now coming to the questions themselves, with regard to the first question Mr. <NAME>'s contention is that under Section 4(1)(b)(ii) only such remittances are taxable which represent income which was earned by a resident in British India. According to him if a resident in British India earns income outside British India and then brings that income into British India, the income having been earned after April 1, 1938, such a remittance into British India is taxable under Section 4(1)(b) , Sub-clause (iii). Mr. <NAME> contends that inasmuch as this particular income of Rs. 2,01,000 was earned by the assessee as a non-resident outside British India, it cannot be taxed at all. Mr. <NAME>, therefore, asks us to give the word "him" occurring in that sub-clause a particular connotation. He wants us to read that word to mean "provided that he was a resident in British India." I see no reason why these words should be interpolated in Section 4(1)(b)(iii) . It is also important to note that Section 4(1)(b)(ii) deals with income of a resident in British India which accrues or arises without British India. Therefore, in any particular year the total income of a resident in India would also include all income which accrued or arose to him without British India. As that was already taxed if he brought that income into British India subsequently, it could not possibly be taxed again and, therefore, if Mr. <NAME>'s contention was right it was unnecessary and superfluous to enact Sub-clause (iii) at all. Sub-clause (iii) is enacted, amongst other things, to deal with this particular case which we have before us which would not have fallen under Sub-clause (ii). It is a case of a non-resident receiving income, then coming to British India and becoming a resident here and bringing his income into British India, and as this income was not taxed before, it becomes liable to tax as remittance in the year in which it is brought into British India. It is necessary to note that under this sub-clause what is being taxed is not income but remittances and the <ORG> is only concerned with the fact that the person who remits it is a resident in British India and that the remittance takes place in the year of accounting. The fact that the remittance represents income earned by a non-resident is entirely irrelevant.

5. With regard to the second question, namely, whether the assessee is entitled to set off Rs. 73,779 against the sum of Rs. 2,01,000 it is conceded by Mr. <NAME> that he can only succeed if he can satisfy us that both these amounts fell under the same head of income, because otherwise the proviso to Section 24 would clearly come in his way. Now it is true that Rs. 73,779 is a loss in business of the assessee carried on in Indore and the question is whether the amount of Rs. 2,01,000 can be considered to be falling under the head of profits and gains of the assessee's business. Mr. <NAME> says that this amount was earned in his business, but we are not concerned with how this income arose to the assessee. The relevant point of time is when this amount was brought into India. It is the remittance that has to be taxed and it is clear that this remittance cannot fall under Section 10 as income from business but it must fall under Section 12 as income from other sources. If that be so, then it is clear that the assessee cannot set off Rs. 73,779 which is a loss falling under the head business against Rs. 2,01,000 which is income falling under the head "Other sources" under Section 12 . I would, therefore, answer the first question in the affirmative, and the second question in the negative. The assessee must pay the costs of this reference.

Tendolkar, J.

6. This reference arises out of an assessment for the year 1944-45 the accounting year being Section 1999-2000 (Maru) beginning from November 9, 1942. The assessee was a resident during that year but was held to be a non-resident in preceding years. Upon the commencement of his business in Bombay on November 9, 1942, a sum of Rs. 51,000 was credited in the personal account of the assessee. Another sum of Rs. 1,50,000 was similarly credited on January 8, 1943. These two sums aggregate to Rs. 2,01,000; and it was the case of the assessee before the Income-tax Officer that his rich uncle had died leaving him a large fortune and this amount represented a part of that fortune brought by him into British India. On this he was disbelieved, and it was held that these sums represented remittance of profits received in British India by the assessee through business carried on in previous years in the Indore State. They were, therefore, assessed under Section 4(1)(b)(iii) , and the first question of law that has been referred to us is whether they were so rightly assessed. During the accounting year the assessee suffered a loss in his business at Indore to the extent of Rs. 73,779. The assessee claims that he is entitled to set off this amount against the remittance of Rs. 2,01,000, and the second question referred to us is whether he is so entitled.

7. Upon this reference having been called on before us, the Advocate General for the Commissioner raised a preliminary objection that the first question of law was wrongly referred to us by the <ORG> inasmuch as it does not arise out of the order of the <ORG>, and that, therefore, we should not determine it. To this preliminary objection there is to my mind a very short answer for the purposes of this reference. The scheme of Section 66 of the Income-tax Act is that under Sub-section (1) either the assessee or the Commissioner may apply to the <ORG> to refer to <ORG> any question of law arising out of such order and the <ORG> may draw up a statement of the case and refer it to <ORG>. If they do so, and they have done so in the present reference, then it is the duty of <ORG> under Sub-section (5) thereof to decide the question of law raised by the case stated. The section does not confer power either on the assessee or the Commissioner to go to <ORG> and urge that the case should not have been stated or no question of law should have been raised. It is only if the <ORG> takes the view that no question of law arises and refuses to state a case that either party is entitled to apply to <ORG> under Sub-section (2) for an order requiring the <ORG> to state a case. That is not the position before us. Since the <ORG> has, although the question was not argued before it, raised the question of law and deferred it to us, we are bound to determine it under Sub-section (5). In this view of the ease I do not consider it necessary to express any opinion on the wider question as to the correct meaning placed on the words "question of law arising out of such order". There has been a wide divergence of judicial opinion on the interpretation of these words and the various High <ORG>s have taken various views which are difficult to reconcile. These words would, in my opinion, fall to be determined only when an application under Section 66(2) is made requiring the <ORG> to state a case. I, therefore, refrain from expressing any opinion on the correct interpretation to be placed on these words.

8. With regard to the first question of law that has been referred to us, the language of Section 4(1)(b)(iii) is plain and simple. It provides that the total income of an assessee, resident in British India, shall include income profits and gains which have accrued or arisen to him without British India before the beginning of the accounting year and after April 1, 1933, and are brought into or received in British India during the accounting year. There is no doubt that in this case, on the facts found, Rs. 2,01,000 represented income profits or gains which accrued to the assessee without British India prior to the accounting year and after April 1, 1933, and, therefore, in terms the sub-clause applies. But it is contended by Mr. <NAME> for the assessee that this sub-clause does not relate to the income which accrued or arose to a person who was a non-resident at the time when the income accrued or arose. To my mind, there is no justification for restricting the meaning of the sub-clause in this manner. It would amount to interpolating into the plain words of this sub-clause words which are not there. Moreover, if such was the true intention of the <ORG>, it is difficult to understand why Sub-clauses (ii) and (iii) should have existed side by side in respect of any year subsequent to the year when these sub-clauses were inserted in the Income-tax Act by the amendment of 1939. Income which accrues or arises to a resident in British India during any year is a part of his total income under Section 4(1)(b)(ii) . It could not have been intended that this particular part of the total income should again be included in his total income in a subsequent year when it is received in British India. I am, therefore, not prepared to restrict Section 4(2)(b)(iii) in the manner suggested by Mr. <NAME>, and I agree that the first question must be answered in the affirmative.

9. With regard to the second question, Mr. <NAME> claims that he is entitled to set off the loss of Rs. 73,779 against the amount of Rs. 2,01,000, because he says that the amount of Rs. 2,01,000 is profits and gains of a business within the meaning of Section 10 , and, therefore, the loss made in that business must be set off against that sum. I cannot agree that this amount represents profits of a business or that it has been taxed as such. This amount is included in the total income of the assessee by reason of the fact that it was remitted to British India during the accounting year and, therefore, it has been quite rightly taxed by the Income-tax Officer under the head "Income from other sources." The amount of Rs. 73,779 which represents business loss cannot, therefore, be set off against it under Section 10 of the Act. Reliance was next placed on Section 24 of the Act. No doubt under that section where an assessee sustains loss of profits or gains in any year under any of the heads mentioned in Section 6 he shall be entitled to have the amount of the loss set off against his income profits or gains under any other head in that year. Now the sum of Rs. 2,01,000 falls within the fifth head in Section 6 , viz. "Any other sources," and the loss of business falls under a different head, viz., the fourth head of "Profits or gains of business." So that Section 24(1) applies. But the proviso to that section puts the assessee out of <ORG>. That proviso provides that in so far as the loss sustained is a loss incurred in a Native State, such loss shall not be set off against profits or gains in British India, but can only be set off against profits and gains in an Indian state. The result, therefore, is that even under Section 24 the assesses is not entitled to have the amount of Rs. 73,779 set off against the sum of Rs. 2,01,000. The second question referred to us must, therefore, be answered in the negative.


JUDGMENT <NAME>, J.

1. These appeals arise out of disputes between certain archakas of the Tiruchanur Temple and Sri Mahant of Tirupathi as the Vicharanakartha of the said temple. To follow the evidence and appreciate the contentions in the case a preliminary narrative may be helpful.

2. The Tiruchanur Temple has long been associated not merely in the popular mind but also in respect of its management with the temples at Tirumalai (on the hills), and Tirupathi (at the foot), and all the three and a number of other temples in the neighbourhood have generally come to be known as the Tirumalai Tirupathi, etc., Devasthanams. When the Government divested themselves of the management of Hindu Temples, this group was handed over to the then Mahant of <ORG> at Tirupathi, and they have ever since continued under a common management.

3. In the Tiruchanur temple the principal shrine is that of the Goddess Sri Padmavathi(referred to as Thayar or Amrn'avaru). But in the same temple there has long been also c a shrine of Sri Krishna. The Archaka miras in the Padmavathi shrine is admittedly hereditary, and in the course of the proceedings in the Court below, it was practically admitted that the Archakas of the Padmavathi shrine were hereditarily entitled to the Archaka miras in the Sri Krishna Shrine as well. In 1905 a separate building was consecrated within the temple precincts as a shrine of Sri Sundararajaswami, and to this building the utsava idol of Sri Sundararaja, which therefore had been kept and worshipped in the Padmavathi shrine itself, was removed, and a new Moola Vigraha was installed in this new building. One of the questions argued in this case relates to the claim of the Archakas of the Padmavathi shrine to miras or hereditary right in respect of the Sundararajaswami Temple.

4. As to the Archakaship in the Padmavathi temple, it would appear from Ex. II that in 1818 three persons, namely Vyasa <NAME>i and his father Seshiah and another <NAME>, son of Rangachari, were miras Archakas of that shrine with shares in the proportion of 3, 1 and 2. It is however clear that from and after 1827, the branch of the first two held a half share and the branch of <NAME> was entitled' to the other half share. <NAME> would appear to have died somewhere about 1841, leaving, a widow <NAME>, and she applied by Ex. XI to be registered as mirasidar and to be permitted to discharge her duties through her brother-in-law <NAME>. This was apparently permitted. Troubles seem to have arisen shortly afterwards on account of disputes between these two, and <NAME> of the other branch seems to have been asked to do duty for her turn as well. But matters seem to have settled down by the date of Ex. A, (1849), and one <NAME> was arranged by her to attend to her duties. About 1852 she brought one <NAME> on the scene, and this led to new troubles which however need not now be referred to in detail. Later on, she adopted one <NAME> who enjoyed this half share in the archaka miras till his death in 1911.

5. On 2nd September, 1911 (the day of his death) <NAME> executed a will, (Ex. O.), whereby he authorised his wife to adopt, bequeathed a moiety of his half share to the son to be adopted, and bequeathed the other half to his sister's son <NAME>. The documents marked P series in the case show that, in due course, the title of <NAME> under the will was recognised by the <NAME>. In May, 1917, the widow adopted one <NAME>, and the documentary evidence shows that this adoption was also brought to the knowledge of and recognised by the <NAME>. Things went on smoothly enough between the parties till 1921. Two other matters must be adverted to, to understand the origin of the subsequent disputes.

6. The Tiruchanur temple seems to have no permanent endowment of any value, and the expenses of the services and worship in the temple have to be met from offerings made by pilgrims. It would appear from Ex. I that the archakas held some Inam lands, but, for whatever reason it may be, such inams have long ago ceased to be in their possession. Thus they too have to maintain themselves from out of what the pilgrims may give. Exs. I and II show that even before 1818, a system had come into vogue by which offerings described as " Kanukas " were divided into two classes, namely those less in value than 5 varahas(Rs. 13-2-0) and those above, the former being taken by the archakas and the latter going to the temple. Subject to this provision, Ex. II states generally that the three archakas therein named shall enjoy the income received in the temple of the Goddess and render services. The services to be rendered by them are set out in the same document in elaborate detail. It is sufficient to observe that the scheme has nearly all along been, that the archakas themselves supply the daily paditharams and other regular items required for the daily worship, and also perform several Utsavams. At the beginning of the Government administration some officer seems to have imagined that the income derived by the archakas from the offerings might be considerable and for a time he got all the collections directly made as if in Amani, but when it was found that the income derived by the archakas from all sources was practically equal to the expenditure incurred thereout, the old system was allowed to be continued. The only other interruption for sometime between 1820 and 1830 seems rather to have been a punitive measure taken on account of <NAME>'s misconduct. It is in view of the long and undoubted prevalence of the arrangement above set out, that the written statement suggests that the archakas must have come to collect the offerings under some kind of lease arrangement between them and the temple authorities. This raises one of the principal issues in the case and will be dealt with in the proper place.

7. When the collections made by the archakas increased, attempts were now and then made either to add to the services to be rendered by them or to collect contributions from them, on the ground that their income had increased by reason of improvements effected to the temple and the worship therein at the Devasthanam expense. This system of annual lump contributions began in or about 1876 and has in one form or another continued down to the date of suit. In Ex. J(September, 1898) it is stated that contributions were claimed from the archakas on the ground that the temple had been improved and that they had been getting a larger income, that for sometime they had been making a lump payment of Rs. 250, that they had latterly been paying varying amounts for the expenses of certain new festivals, that they preferred to have a fixed. contribution to make, and that the same was accordingly fixed at Rs. 500 per annum. This is certainly more in accordance with the hypothesis that with their growing income the archakas were not unwilling to make decent contributions to the institution which was the cause of all their prosperity.

8. While things were going on on the basis of this arrangement of 1898, a <ORG> Inspector raised one or two conundrums in 1921 as to the way in which the principle of the division of Kanukas between the archakas and the temple was to be applied in the illustrations given by him in Ex. XXXIII(b). The result of the consequent correspondence was that pending final settlement, such items were directed to be placed in deposit in the temple. Sometime before this, the other branch of the archakas ceased to have any male members, by reason of the death of <NAME> and his son <NAME> in 1914, and the turn of that branch was taken under <NAME> by the <ORG>. Ex. XXVIII(O) shows that when that turn was let out in auction, there was keen competition, and the highest bidder agreed to pay as much as Rs. 2,574 to the <ORG> for a year's turn. It is therefore no wonder that the <ORG> authorities imagined that in view of the large income that the archakas were making, the temple might reasonably claim a larger share for the <ORG>. A convenient opportunity was available on <NAME>'s death when that branch was represented by a minor widow (Chellammal). In a communication from the <ORG>, she was charged that she was taking away several heads of income which must properly go to the <ORG>, and was informed that a system of tickets for archana and harathi was introduced, and that pending settlement of the question whether the income derived from archana and harathi should go to the archaka or to the temple, the collection would be kept separate in the <ORG> treasury (See Ex. W). It was added that, as regards <NAME> shrine, it was clear from the records that the entire income by way of gifts for archana and harathi should go to the <ORG> alone. A copy of Ex. W was also forwarded to <NAME> and <NAME> the persons who were entitled to the other half share in the archaka miras, and on receipt thereof, they sent up the representation Ex. XXIII.

9. It will be convenient at this stage to refer to another point of dispute in the present litigation, as that is also referred to in Ex. XXIII. There are certain duties to be performed at Tirumalai(shrine on the hills) grouped under the heading " Bokkasam ". In Ex. II " Bokkasam " is explained as taking care of the clothes and giving them to the God whenever necessary. It is there stated that this duty was to be performed by Ramaswami, one of three persons mentioned as being the Tiruchanur archakas, and by another " Bokkasam " <NAME>. The record furnishes no information as to who this <NAME> was; but it would appear from Ex. III that he had nothing to do with the Tiruchanur temple. Nor does the record show any reason why, or how it came about, that Ramaswamy alone out of the three Tiruchanur archakas had to do the " Bokkasam "duty on the hills. These two circumstances are strongly relied on by the archakas in support of their plea that there is no connection whatever between the Tiruchanur archakaship as such and the "Bokkasam" service on Tirumalai and that though Ramaswami was doing the "Bokkasam" service till his death, it was not in his capacity as an archaka of the Tiruchanur temple. We shall deal with this contention in due course. It is sufficient to add here that it is admitted that from about 1852, none from amongst the Tiruchanur archakas, not even from Ramaswami's branch, performed this service on Thirumalai. It was in this state of things that in 1921, the Vicharanakartha claimed that the archakas of Tiruchanur should either perform the Bokkasam kainkariam at Tirumalai or pay a certain sum of money to him, to enable him to meet the expenses of getting the service performed by other persons. In Ex. XXIII, both <NAME> and <NAME> protested against their liability to perform the "Bokkasam" service on the hills, and also against the claim of the Devasthanam to the archana and harathi fees in the Tiruchanur temple. It winds up in a curious way. "If you have the intention of getting money from out of our income " they say that their contribution may be fixed at Rs. 2,000 per year on certain conditions.

10. About this time <NAME>'s turn of duty in the Padmavati shrine was approaching, and he applied that a muchilika and security bond might, as usual, be taken from him and he might be permitted to perform his duty. Though his rights have undoubtedly been recognised by the Devasthanam from 1912, questions are put in Ex. EE, to explain his rights. This appears rather disingenuous and gives room to think that the object apparently was to compel him to come to terms on the matters raised in Exs. W and XXIII. As stated in the endorsements on Ex. XXIII(b), a draft was prepared embodying the best that could be got from him in the circumstances, "after considerable cogitation and mediation". Ex. XXIII(b) contains a recital that records have been filed, that "Bokkasam" service in <ORG> should be performed by the archakas of <ORG>. The present record shows that this is true only in a very qualified sense. On the assumption stated in Ex. XXIII(b) <NAME> thereby agrees to pay Rs. 1,500 in a lump sum for a period of one year, to be relieved of that service. As regards the harathi and archana fees in the Tirchanur temple, he agrees to pay a lump sum of Rs. 1,500 for a period of one year. When Ex. XXIII(b) was sent up to the <NAME> he raised some difficulty about this last provision; and within a week of Ex. XXIII(b), <NAME> sent a lawyer's notice(Ex. T) on the 7th November, 1921, repudiating even Ex. XXIII(b), and instituted this suit on 14th November, 1921. A.S. No. 347 of 1927 arises out of this suit, which was transferred to the <ORG><ORG><ORG> to be tried along with the other suit and renumbered in the <ORG><ORG><ORG> as O.S. No. 1 of 1924.

11. Besides the points of dispute already indicated, the <ORG>, by his written statement in this suit, questioned the title of <NAME>, contending that as a matter of law a transfer of the archaka office was invalid.

12. While <NAME>'s suit was pending in the <NAME>'s <ORG>, <NAME> (the adopted son of <NAME>) attained majority, and as his turn of duty in the Tiruchanur temple was to commence from the 1st November, 1923, he applied by Ex. CC, that a muchilika and security bond must be taken from him as usual and he be permitted to attend to his duty. His adoptive mother sent CC-1 supporting that application. On receipt of this application the <ORG> raises questions whose necessity is by no means apparent, in view of what the <ORG> already knew. In disgust, if not in despair, the lady's vakil wrote on the 17th October, 1923, that if the <NAME> had any objection to allowing the adopted son to do the duty, the widow at least might be permitted to enter upon them as his guardian. This brought forth the reply CC-6, and when the lady's vakil sent another strongly worded letter CC-7, the <NAME> sent a reply CC-8 on the 12th November, 1923, wherein he said he would allow the lady to do the duty in her capacity as widow, provided that she agreed unconditionally to execute a kararnama for doing Thirumalai Bokkasam Kainkariam, or in the alternative to pay the commuted rate of lease for Tirumalai Bokkasam as well as Arjitam revenue of the Padmavathi Amman temple, amounting in all to a sum of Rs. 3,500 for the vantu (turn) year. This left the widow and the adopted son no alternative but to institute a suit, which they did on the 27th November, 1923 and it is out of this suit(O.S. No. 54 of 1923) that A.S. No. 210 of 1927 arises.

13. By his written statement in this suit, the <NAME> disputed the genuineness of <NAME>'s will and the validity of <NAME>'s adoption. For the very purpose of avoiding defeat or delay on this ground the widow had, as a matter of precaution, joined in the suit as second plaintiff and the parties prayed that, should the Court hold against the adoption, the widow might be given a decree on the strength of her undoubted title. The Court below found in favour of the will and of the adoption, and as these findings have not ' been attacked in the course of the argument before us, our judgment proceeds on the footing that <NAME> (the first c respondent in A.S. No. 210), is the validly adopted son of the deceased <NAME>.

14. From what has been stated above, it will be seen that the main questions in the two appeals relate (1) to the obligation of the plaintiffs as archakas of the Tiruchanur temple to arrange for the discharge of the Bokkasam duty on the Tirumalai, and (2) to the respective rights of the parties to the various receipts in the Tiruchanur temple under the heads of Kanukas, archana and harathi. The objection to the claim of hereditary mirasi right of archakaship in the Sundararajaswami shrine has also been pressed before us.

15. Before dealing with these questions which are common to both the appeals, it will be convenient to dispute of the objection raised in A.S. No. 347 to the validity of <NAME>'s title to the office by devise. The will Ex. O recites that <NAME> was the testator's sister's son who had lost his father while yet a boy, and was accordingly brought up by the testator and got married to his brother's daughter. No objection has been raised to the personal fitness of the devisee to perform the duties of the office, nor can it be disputed that he is one in the line of heirs to the testator. It is only as a matter of law, that Mr. <NAME>, on behalf of the Devasthanam, contends that an office like that of an archaka cannot validly be transferred or bequeathed. The learned Subordinate Judge overruled this objection on the ground that such a transfer is permissible in law where it is in favour of a person in the line of heirs, and also on the ground that a custom permitting such transfers has been made out in the case. Mr. <NAME> has attacked both these steps in the learned Judge's reasoning. The transfer in this case is not one for consideration or for the pecuniary benefit of the transferor; and in view of that fact. Mr. <NAME> has not gone the length of contending that even if a custom in support of the transfer is made out, it should not be upheld. But he maintains that the custom if any must be one relating to this particular institution and that no such custom has been made out in this case.

16. Most of the reported decisions dealing with this question arose out of alienations for value; and considerations of "public policy" <NAME> v. <NAME> (1876) I.R. 41. A. 76 : I.L.R. 1 Mad. 235 (P.C.) or of the temptation to which needy office-holders may be exposed. <CITATION> (1882) I.L.R. 6 Mad. 76 and <CITATION> (1891) I.L.R. 15 Mad. 183 : 2 M.L.J.19, naturally have an important bearing in such cases. In the case in <NAME> v. <NAME> (1876) L.R. 4 I.A. 76 : I.L.R. 1 Mad. 235 P.C. the Privy Council also refer to the doctrine of delegatus non potest dele gar e, and the possibility that the recognition of a right of transfer may defeat the presumed intentions of the founder of the <ORG>. These two considerations have greater relevancy to cases where the trustee's office is sought to be alienated than to transfers of archakaship: indeed, in the case of archakas, the right of delegation has been expressly recognised by permitting the system of proxies. There is again no question here of the alienation being intended or calculated to alter the form of worship <NAME> v. Srinivasa Aiyangar (1872) 7 M.H.C.R. 32 or effecting anything repugnant to or inconsistent with the very nature and purpose of the endowment, <CITATION> (1917) L.R. 44 I.A. 147 : I.L.R. 40 Mad. 709 : 33 M.L.J. 1 (P.C.). It is true that in the <NAME> v. <NAME> (1876) L.R. 4 I.A. 76 : I.L.R. 1 Mad. 235 (P.C.) their Lordships refer to what may be termed the "common law of India". Whether their Lordships meant to assume the existence of a rule of 'common law' with reference to all offices, or to all religious offices, or only with reference to trusteeship, is not very clear. Again when they refer to 'custom' it is not clear whether they meant to lay down that custom may give a right of alienation where in the nature of things none could otherwise exist, or the effect of custom was merely to remove objections based on presumed intentions of the founder.

17. When and in so far as emphasis is laid on the spiritual duties relating to certain offices, <CITATION> (1925) I.L.R. 53 Cal. 132 at 156 or on the fundamental idea that in the case of these offices, the duties are the substance of the office and the emoluments are only subsidiary or appurtenant, per <NAME>, J., in <NAME> v. <NAME> (1914) I.L.R. 38 Mad. 850 : 26 M.L.J. 315 the argument against alienability is indeed very strong. And it is also true to say that such offices should not be assimilated to ordinary private property, <CITATION> (1891) I.L.R. 15 Mad. 183 : 2 M.L.J. 19. But once the principle of appointment or selection was ignored and hereditary rights (including those of woman) were recognised, the next step was to bring in the practice of partition. It is interesting to note the difference of opinion on this point between <ORG> and <NAME> as early as 1808,(see Strange's Hindu Law, Second Vol., pages 363 and 364). Sir <NAME> remarked (Vol. 1, p. 209) that the doubts of Mr. <NAME> rest upon "no solid foundation", and preferred the view that except in special cases heritability involved the right to partition amongst co-heirs. The conception developed in the <NAME> and commentaries, that a hereditary office was under the Hindu Law assimilated to " immovable property",(see <NAME> v. <NAME> (1869) 6 B.H.C.R. (A.C. J.) 137, <NAME> v. <NAME> (1872) 9 B.H.C.R. 99 and Maharana <NAME> v. <NAME> (1873) L.R. 1 I.A. 34, naturally led on to alienability as one of the incidents of property, and the numerous reported cases on the point certainly testify to the prevalent practice of alienation. In <NAME> v. <NAME> (1898) I.L.R. 13 Bom. 131 Ranade, J., observed that in the Madras Presidency sentiment is very strong against the alienation of temple offices, but that in other parts of India, the restrictions are less strictly enforced, especially when the alienee is a nearly related member of the family. Even in the Madras Presidency the objection would seem to have prevailed in the <ORG> rather than in the sentiments of the people. On p. 137, the learned Judge states, that "by force of custom a limited right of partition and alienation might be established." This observation would suggest that custom must be invoked to justify alienation; and the issue sent down to the lower Court in that case was framed on that footing. But in <NAME> v. <NAME> (1882) I.L.R. 6 Bom. 298 at 300 the learned Judges deal with the rule of inalienability even in such cases as a restriction "upon the exercise of the ordinary rights of property". In both these cases, reasons are given justifying a differentiation between involuntary sales and private alienations, and between alienations to strangers and alienations to members of the family or those in the line of heirs.

18. In this state of the authorities, we think that in the circumstances of this case, our decision may be rested on a narrow ground. The facts here are almost ad idem with those in <NAME> v. <NAME> (1882) I.L.R. 6 Bom. 298' and we have not been, referred to any reported case where that decision has been; dissented from on similar facts. The distinction made by Maclean, C.J., in <CITATION> (1907) I.L.R. 35 Cal. 226,. between transfers inter vivos and transfers by will, may have force when the transfer relates to an office in the nature of a bare trusteeship, which seems to have been, the case before the learned Judge. Cases where the hereditary office involves considerable beneficial interest cannot be put on the same footing as bare trusts for all purposes. <CITATION> (1909) I.L.R. 36 Cal. 975 the learned Judges followed the principle laid down in the <NAME> v. Psanshankar (1882) I.L.R. 6 Bom. 298,. though in view of the Full Bench judgment in <CITATION> (1907) I.L.R. 35 Cal. 226 they emphasise that the case before them was one of gift inter vivos and not by will. <CITATION> (1882) I.L.R. 6 Mad. 76, <CITATION> (1891) I.L.R. 15 Mad. 183 : 2 M.L.J. 19, <CITATION> (1895) I.L.R. 19 Mad. 211, <CITATION> (1914) I.L.R. 38 Mad. 850 : 26 M.L.J. 315 and <CITATION> (1918) 36 M.L.J. 355 this Court merely refused to apply the principle of the <NAME> v. <NAME> (1882) I.L.R. 6 Bom. 298 to transfers for value or to transfers in favour of strangers. This does not seem torequire or justify our refusing to follow the decision in <NAME> v. <NAME> (1882) I.L.R. 6 Bom. 298 even when the alienation is to one in the line of heirs, is not for consideration, and is not in any way opposed to or inconsistent with the interests of the institution.

19. In this view it is not necessary to deal with the question of custom at much length. Exs. XXXIV(g) of the year 1862 and A-2 of the year 1852 undoubtedly furnish instances relating to this temple itself. And as already stated <NAME> the present plaintiff was himself recognised in 1912 as entitled to perform the duties on the strength of the will Ex. O. Instances of this kind, when confined to each particular temple, can in the nature of things be only a few. But taken along with the fact that on none of these occasions did the Devasthanam authorities raise any objection on the ground of principle, they may reasonably be held sufficient to establish a custom in support of such transfers. We accordingly affirm the finding of the <ORG> below in favour of the title of <NAME>.

20. On the question of the plaintiffs' liability to render Bokkasam service on the hills, we are in agreement with the <ORG> below and the matter may therefore be briefly disposed of. As already indicated, the inclusion of <NAME> in Ex. II in connection with this service, taken along with the exclusion of <NAME> branch, certainly lends support to the archakas' contention dissociating the Bokkasam duty from the archaka miras. Mr. <NAME> relied upon Ex. XIV, as suggesting that <NAME> must also have been doing Bokkasam duty. One <NAME> there recites that her husband has been performing Bokkasam service, and reading Ex. XIV with Ex. A-4 he tried to make out that <NAME> the petitioner under Ex. XIV was the same as <NAME> who is described in A-4, as the widow of <NAME>. The learned Subordinate Judge thought that <NAME> of Ex. XIV might be the widow of Bokkasam <NAME>. The contents of Ex. XIV lead us to think that she was probably the widow of <NAME> who had been introduced by Narasamma as her gumastha sometime after the death of her husband Ramaswami.(See Ex. A-2 and Ex. XVII). The second paragraph of A-3 shows that Srinivasacharlu's widow's name was <NAME>, and reading A-3 in the light of Ex. XIII it would appear that she finally preferred to abandon the claims that she put forward in the right of her husband Srinivasacharlu. But Ex. XIV was written before she agreed to do so, as it shows that she proposed to bring her brother-in-law from Devallapalli to do the duty.

21. From Exs. XIII and A-3 it would appear that <NAME>'s widow had entrusted all her husband's duties, both at Trichanur and on the hills, to this Srinivasachari; and on his death disputes arose, as a result whereof the duties at Tiruchanur were taken over by <NAME>'s widow with the help of another gumastha. What happened to the duties at Tirumalai we do not know. But it is not disputed that from this date onwards, the ajrchakas at Tiruchanur never performed Bokkasam duty on the hills. We agree with the <ORG> below that in the circumstances it is a fair and reasonable inference that some arrangement must have taken place at or about this time, whereby even <NAME>'s branch must have been relieved of the Bokkasam duty on the hills. The mere fact that we are not at this distance of time able to ascertain the details of this arrangement will not justify us in holding that no such arrangement could have been validly entered into, nor enable the Vicharanakartha to throw on the Tiruchanur archakas the responsibility for the discharge of this duty.

22. In this view it is not necessary to notice at length the argument urged by Mr. <NAME> on the strength of some of the early documents, that when Ramaswami or his widow was in default, in respect of the Bokkasam duty, the temple authorities took under amani even their archaka turn at Tiruchanur. This was apparently a punitive measure, and is sufficiently explained by the fact that both the temples were tinder one and the same management. It must also be remembered [as pointed out in <CITATION> (1911) 21 M.L.J. 730, that in the administration of temples in those days, the Government exercised not merely the powers of a trustee but also those of a sovereign power. The references to Bokkasam miras by <NAME> and his son in Exs. XXI and XXXVI respectively are of very little value, when there is nothing else to show that their branch had ever been discharging these duties, and they had admittedly not performed these duties since 1854.

23. As regards Sri Sundararajaswarm's shrine, the evidence stands as follows: - The Utsava idol of this Swami, which had theretofore been kept and worshipped in <NAME> shrine, was installed as an object of independent worship in a new shrine in June 1905.(See <ORG>). The <NAME> ceremony was performed by the father of D.W. 7, and for sometime after Mandalabishekam he seems to have done the archaka work in the new shrine. Thereafter D.W. 7 did the duty for a year or more on a salary of Rs. 10 or 15 per mensem. There is no doubt on the evidence that offerings and all other sources of income received in this shrine have all along gone to the <NAME> and the archaka, whoever he was, has been paid a fixed monthly salary. There is nothing to support the suggestion that in doing duties as archakas at the new shrine, D.W. 7 and his father merely acted as deputies for the archakas of <NAME> shrine. Ex. <ORG>-1, dated the 9th September, 1905 refers to the salary system at the new shrine. It makes reference to <NAME> in this connection, though it is not clear how, in the face of D.W. 7's evidence, <NAME> could have been doing duty at the new shrine on the date of <ORG>-1. Anyhow, that document itself makes it clear, that the Vicharanakartha preferred the salary system for the new shrine, and would not accede to the suggestion that the archakas might take the collections. The plaintiff in the suit of 1921, examined as P.W. 1 admits that, for sometime after the prathishta, puja was got done by some persons who were strangers to the mirasi families, that he himself took over the archakaship on a kind of lease from the <NAME> for a period of five years, that when he applied again for a further lease, it has been refused and a contract given to somebody else. It would thus appear that such service as the Tiruchanur archakas have so. far done in the new shrine was performed by them only as paid servants of the Vicharanakartha, or under one or other of the lessees from the <NAME>, and their claim to take the collections at this temple has been uniformly denied by the Vicharanakartha. No kararnama of the usual kind has been executed by the archaka in respect of this shrine; and it is noteworthy that Ex. O, while referring to both the shrines, speaks of a miras right only in respect of <NAME> Shrine. P.W. 3, P.W. 4, and P.W. 5 do not suggest anything like the recognition of a right, when read;in the light of the above facts and Ex. XXXII(a) clearly suggests the contrary; so also, the request in Ex. XXIII that on certain terms the <NAME> of Sri Sundararajaswami may be given to the petitioners. It is also significant that no claim was made in the plaint in the earlier suit, i.e., P.W. 1's suit of 1921(A.S. No. 347) in respect of this temple. The learned Subordinate Judge explains this away by saying that at the date when that suit was filed 'there had yet been no dispute' with regard to this temple. But he has failed to realise that the absence of a dispute was due to the fact that the archakas had not till then put forward any mirasi right in respect of this temple.

24. The learned Subordinate Judge has laid stress upon the circumstance that, prior to the removal to the new shrine, the utsava idol was worshipped by the old archakas in the padmavathi shrine. But he ignores the fact that during that period this idol was not the subject of independent worship or a separate source of income. It is common knowledge, and the evidence also shows, that when a principal deity is worshipped at a shrine, a number of other idols are placed there and have the benefit of that worship. But it has not been usual to regard them as objects of independent mirasi rights of worship. Taking it however that that circumstance could have given the old archakas some justification for claiming rights in the new shrine as well, the whole course of subsequent conduct on both sides has been inconsistent with such a claim. The decision in <CITATION> (1922) 73 I.C. 381 is not really analogous to the present case. It was there held that the mere shifting of a family idol from one place to another will not constitute it a new endowment so as to vary the rights of the family. No question arose there, as to how the position would stand when a new institution comes into existence while the old one also continues to exist. At best, the old state of things can only give rise to a presumption in favour of the old archakas, which as already stated has in the present case been amply rebutted by the evidence as to subsequent conduct. For these reasons, we are unable to accept the finding of the lower <ORG> on this question.

25. It remains to consider the respective rights of the parties to the collections made in the shrines of Sri Padmavati and Sri Krishnaswami, under the heads of Kanukas, Archana and <NAME>. On behalf of the Devasthanam it has been contended that all these offerings prima facie belong to the deity, that the archakas are only entitled to a reasonable remuneration for their services, that the existing arrangement is and must at any rate be deemed to be only a temporary one subject to revision by the Vicharanakartha from time to time and that, if, regarded as permanent, it will not be binding on the temple. In support of this contention Mr. <NAME> strongly relied on the judgment of <ORG> reported in <CITATION> (1916) I.L.R. 40 Mad. 212 : 31 M.L.J. 777 (F.B.). In the view we take as to the effect of the evidence in this case, we are unable to accede to this contention. <CITATION> (1916) I.L.R. 40 Ma. 212 : 31 M.L.J. 777 (F.B.) the suit was brought to set aside what purported in terms to be a perpectual lease granted by the Devasthanam committee to the archakas in 1893; and though the learned Judges refer to the older practice, they proceed on the footing that the transaction amounted to a permanent assignment or appropriation of trust property by a trustee. It is not for us to canvass the correctness of that assumption, with reference to the evidence in that case or consider whether the transaction could not have been viewed in a different light. Taking that particular view of the transaction, the learned Judges held that as a matter of law, it was beyond the powers of a trustee. On the evidence in the case before us, we are unable to hold that the existing arrangement must be viewed as an 'alienation' of trust property, nor is it even possible to say that it was entered into by a person with the limited powers of a trustee. Even so early as in 1818, it is referred to as a 'mamool' arrangement and for aught we know, it might have come into vogue when the <ORG> was exercising sovereign powers and not merely the limited powers of a trustee over this institution. The arrangement is certainly not in the nature of a 'lease' because the collection is made by the temple authorities themselves and only a portion thereof is handed over to the archakas. Nor is it intended to provide only for their remuneration, because out of these receipts, the archakas meet the expenses of the daily paditharam in the temple and also perform certain specified festivals. In circumstances like these, it would be unsafe to base a conclusion on the primary connotation of the words 'Kanukas' or 'Archana offerings' and hold that the archakas must be deemed to be only in the position of alienees of trust property. The relevant decisions take care to make an express reservation in favour of 'usages' in each temple; and unless there, is anything clearly opposed to public policy, Courts will not be justified in setting aside an arrangement which has been in vogue for more than a hundred years. An arrangement by which archakas are remunerated by share of the offerings is quite a well-known practice in this country,(e.g., for instance the facts in <CITATION> (1914) L.R. 41 I.A 267 : I.L.R. 42 Cal. 244 : 27 M.L.J. 100 (P.C.), and not by any means necessarily detrimental to the interests of the institution.

26. Even in the case of alienations of trust property, <ORG> have not laid down a rule of absolute prohibition. In <NAME> v. <NAME> (1921) L.R. 49 I.A. 54 : I.L.R. 46 Bom. 481 : 42 M.L.J. 501 (P.C.) and <CITATION> (1930) L.R. 57 I.A. 125 : I.L.R. 57 Cal. 1293 : 58 M.L.J. 641 (P.C.),. their Lordships recognise the propriety of applying the rule relating to presumption of a legal origin, even to such transactions, where they are ancient, provided of course such a legal origin is practicable and "reasonably capable of being presumed without doing violence to the probabilities of the case" : <CITATION> (1930) L.R 57 I.A. 125 : I.L.R. 57 Cal. 1293 at 1298. We are unable to agree with Mr. <NAME> that a legal origin is impossible to think of in this case. In this view, it is unnecessary to consider whether by reason of the terms of C and C-1,. under which the <ORG> transferred the management to the <ORG>, the latter is precluded from raising even a legal objection of this kind.

27. As a question of fact, Mr. <NAME> tried to contend that on the evidence, the existing arrangement was not, and was not intended to be, permanent or unalterable. He relied (i) on the fact that since A-2, <ORG> has been added to the list of items of which the expenses had to be defrayed by the archakas, and that since A-12, a daily desantri taligai and the Rathasapthami Utsavam have been similarly added, and (ii) on the fact that since 1876, lump contributions have annually been levied from the archakas (cf. Ex. A-4, 26 and Ex. J). It must be said in answer, that the very documents under which these additional liabilities are undertaken by them assert their 'mamool' right, and state that these liabilities are to be met out of the share of the income belonging to them. The recitals made in A-14, 26 and J to explain and justify the <ORG>'s claim for contribution are also very significant. And we cannot accept the extreme contention of Mr. <NAME> that the execution of annual muchilikas by <ORG> shows that the arrangement is only a renewable annual arrangement. We know from the evidence, and the muchilikas definitely say, that the right is a mamool right. The annual muchilikas are taken only to facilitate the execution of security bonds each time when an archaka enters upon his turn of office.

28. We are unable to accept the contention that moneys paid for <NAME> or <NAME> should go to the Devasthanam. No such reservation is made in any of the muchilikas nor is the claim supported by the accounts. We are unabie to award this claim to the temple, on the strength of the evidence of a few of the D.W.'s who say that such was their secret intention when they made payments for <NAME> or <NAME>. The only claim which the documents show was made in the past relates to cases where the same man made payments or gifts both under the head of 'Kanuka' and for <NAME> and <NAME> and the total amount or value exceeded 5 varahas(cf. Ex. XXXIII(a) of 1897). We shall deal with this matter when dealing with the connected CM. As. But, subject to the limitations to be indicated in the CM. As. we agree with the conclusion of the learned Subordinate Judge as to the relative rights of the archakas and the Devasthanam in respect of Kanukas. As regards payments for <NAME> or <NAME>, they shall go to the archakas except when the same person making such payment also makes payment for Kanukas and the aggregate of these payments exceeds Rs. 13-2-0.

29. Mr. <NAME> drew our attention to the fact that the decree of the lower Court does not even provide for the annual contribution of Rs. 500 by the archakas as per the terms of Ex. J, though this payment has never been objected to. We do not know if this was intentional or merely due to oversight. There is no justification for disallowing a contribution which the archakas have without objection been making for a long time; but we need not discuss this matter at length as the archakas have agreed before us to be bound by the terms of Ex. J in this respect. The same remark applies to the additional services and festivals like Dhanurmasa Kainkaryam, Desantri Taligai and Ratasaptami Utsavam which they have undoubtedly been performing for a long time. These two matters will be made clear by a specific reference thereto in the decree.

30. Referring to the form of the injunction given by the lower Court, Mr. <NAME> asked

(i) that the decree must make the injunction conditional on the execution of muchilikas and security bonds by the archakas as usual, and

(ii) that an express reservation should be made in respect of any disciplinary powers that the Vicharanakartha may have over the archakas. It does not seem to us necessary or desirable to incorporate these in the decree. The decree is only meant to declare the normal rights of the parties and it is sufficient to state here that it is not intended either to abrogate the undoubted practice as to the execution of muchilikas and security bonds or to interfere with any disciplinary powers which the Devasthanam authorities may have in special circumstances.

31. As to the direction for payment of <ORG> profits, the parties agree by a consent memo filed before us that in A.S. No. 210 the following may be substituted for the direction in respect of <ORG> profits in the last para, of the lower Court's decree.

The decree as to mesne profits of 1923-1934 granted by the lower <ORG> is set aside and, in lieu thereof, it is decreed that the first plaintiff--first respondent--will be entitled to (1) the actual sum collected by the <NAME> (first defendant) in the temples of Sri <NAME> and Sri <NAME> for archana and harathi fees from 1st November, 1923 to 31st October, 1924, and (2) the Kanukas to which the archakas are entitled as per this decree which were collected by the <NAME> (first defendant) during the same period and which may not have been paid over to the plaintiffs minus (1) the sum of Rs. 500, payable by the plaintiffs for 1923-1924 and (2) the sums expended actually by the first defendant for the Kainkaryams, etc., which the plaintiffs, as declared by this decree, have to do (but not for salary of persons employed by D-1 for doing archaka Kain-karyam only) during the period in that year for which the plaintiffs were not allowed to do service. The appellant will also be entitled to credit in respect of the sums paid by the <NAME> (first defendant) to the plaintiffs during the pendency of the suit in pursuance of the consent order of February, 1924, in M. P. No. 250 of 1923 in O.S. No. 54 of 1923 on the file of the lower <ORG>, and also the sum of Rs. 6,000, deposited by the first defendant and drawn out by the plaintiffs on security as per <ORG> order on C.M.P. No. 2544 of 1927. The balance in whichever party's favour shall be payable to that party by the other party with interest at 6 per cent, per annum from the date on which Rs. 6,000, was deposited into the lower <ORG> by first defendant as per order of this <ORG> on C.M.P. No. 2544 of 1927.

32. In regard to the subsequent two turns of first plaintiff before this date, namely 1st November, 1927 to 31st October, 1928 and 1st November, 1931 to 31st October, 1932, the following order is made:

The first plaintiff having been given as per para. 3(a) of the order of this Court, dated 7th December, 1927, in C.M.P. Nos. 3968 and 5052 of 1927 some of the kanukas to which he is entitled as per the declaration in this decree, and the sum of Rs. 5,000, having been also paid as per para. 3(b) of the same order, the first plaintiff will be entitled to receive from the appellant the balance of the amounts collected as kanukas and Archana and Harathi fees in the temples of Sri <NAME> and Sri <NAME> for the said two years, on accounts taken as per the declarations herein, after deducting therefrom at the rate of Rs. 500 per annum for the said two years. The sums so due to the first plaintiff--first respondent--from the appellant for the said two years will carry interest from 1st November, 1928 and 1st October, 1932, respectively till realisation at the rate earned by fixed deposits referred to in paragraph 3(c) of the order in C.M.P. Nos. 3968 and 5052 of 1927 aforesaid.

33. The parties also agree that in the decrees in both the appeals, the words ' jewels and gold and silver articles other than vessels', may be substituted for the words 'gold and silver articles and jewels' in the second paragraph of the lower Court's decree. The reference to archana and harathi fees in the said para, will be qualified in the manner indicated above.

34. As to costs, we think that A.S. No. 347 of 1927 should be dismissed with costs of the plaintiff-respondent, because the respondent there did not assert a claim of hereditary archaka right, in respect of <ORG> and this is the only point on which we have reversed the lower <ORG>'s conclusion. Even in A.S. No. 210 of 1927 this is only a point of subordinate importance and we think it proper to dismiss that appeal also with costs of the first plaintiff respondent one--but with a direction that out of the taxed costs payable to the first respondent the appellant may retain a sum of Rupees one hundred as costs on the claim disallowed to the plaintiffs.