Judgment:
N.D. Patnaik, J.
1. One person by name G. Ramulu had taken on lease a shop bearing No. 3-3- 418/1 belonging to Sri Narsing Temple and Mutt, Mahankali Street, Secunderabad from 1-10-1975. The tenancy was not evidenced by any document and it is only a month to month tenancy. After taking the shop on lease, G. Ramulu entered into partnership with another person by name Jagadeshwara Rao to carry on business in the said shop. But as per the terms of the partnership deed, Ramulu continued to be the lessee of the shop. Ramulu died on 21-12-1981. His heirs filed two suits i.e., O.S. 1106/82, in the Court of the VII Assistant Judge, City Civil Court, Hyderabad against the Mutt and against Jagadeshwara Rao for declaration that they are continuing as tenants and for injunction directing the Mahant not to recognise Jagadeshwara Rao as the tenant and another suit O.S. 1107/82, in the Court of the VII Assistant Judge, City Civil Court, Hyderabad against Jagadeshwara Rao for rendition of accounts. The trial Court decreed both the suits, against which two appeals have been preferred. A.S. 298/88 was filed against O.S. 1106/82 and A.S. 300/88 was filed against O.S. 1107/82, in the Court of the Additional Chief Judge, City Civil Court, Hyderabad (Temporary). The appellate Court dismissed the appeals. S.A. 438/90 is filed against the decision in A.S. 300/88 and S.A. 439/90 is filed against the decision in A.S. 298/88.
S.A. 438/90:
2. As regards Second Appeal 438/90, which is filed against A.S. 300/88 filed against O.S. 1107/82, the contention of the learned counsel for the appellant i.e., Jagadeshwara Rao is that there was some arrangement between him and Ramulu subsequent to the partnership whereby Ramulu walked out of the business in consideration of Jagadeshwara Rao paying him Rs. 500/-per month and therefore Jagadeshwara Rao is not liable to render any accounts to Ramulu or his heirs in respect of the partnership business. But both the Courts below did not accept that contention and decreed the suit filed by the heirs of Ramulu against Jagadeshwara Rao for rendition of accounts. It is a concurrent finding of fact given by both the trial Court as well as first appellate Court, and there is no substantial question of law involved. Therefore, Second Appeal 438/90 is dismissed. No costs.
S.A. 439/90:
3. As stated above, the heirs of Ramulu filed the suit O.S. 1106/82, out of which the second appeal arises, for declaration that they are continuing to be the lessees of the shop in question and for an injunction restraining the Mahant from recognising Jagadeshwara Rao as a tenant and to deliver the possession of the shop to the plaintiffs. Since the original Mahant who granted the lease died, one person by name Krishna Prakash Das was impleaded as his heir as third defendant in the suit. He filed a written statement admitting the plaintiffs to be the lessees of the shop being the legal heirs of Ramulu. Basing upon that the trial Court as well as the first appellate Court have decreed the suit granting declaration that the heirs of Ramulu are entitled to continue as the lessees of the shop in question. In this second appeal it is contended that the third defendant is not the actual Mahant, but another person by name Jothi Prakash Das is the actual Mahant and an application C.M.P. 16747/92 is filed to bring him on record as 5th respondent in the place of existing 5th respondent or alternatively to implead him as 6th respondent in the appeal. For purposes of this appeal, he is impleaded as 6th respondent and that petition is ordered accordingly. But the question as to whether the 5th respondent is the Mahant or the 6th respondent is the Mahant, cannot be decided in these proceedings either by the Civil Court or by the High Court and that is a matter to be decided by the authorities under the Endowments Act. He contends that the other Mahant is not competent to recognise the plaintiffs as the lessees of the shop in question and that Jagadeshwara Rao is the tenant.
4. Whoever may be the Mahant, shop belongs to the Mutt. The question that has got to be considered in this case is whether the plaintiffs who are the heirs of Ramulu can ask for declaration that they are entitled to continue as lessees of the shop in question after the death of Ramulu. In other words, the question is whether the lease-hold right granted in favour of Ramulu is heritable.
5. The learned counsel for the plaintiffs who are the contesting respondents has contended that under Section 105 of Transfer of Property Act, even a lease from month to month is heritable. In support of his contention he relied upon the decision of the Nagpur High Court reported in Rajib Hussain v. Nawab Yanus Khan, AIR 1937 Nagpur 321, and Shivnath v. Ram Bharosey, : AIR1969All333 . On the other hand, the contention of the learned counsel for the contesting respondents is that the property in question being endowed property, it is governed by the provisions of the Endowments Act and to the extent the provisions are made in the Endowments Act, the provisions contained in the Transfer of Property Act are not applicable and therefore the heirs of Ramulu cannot claim any right as lessees in the property after the death of Ramulu.
6. A Division Bench of this Court in Joint Commissioner, Endowments v. Shaik Meera Saheb, AIR 1977 A.P. 100, held that:
'.... Having regard to these provisions, in Act 17 of 1966, we are of the view that the Provisions of the Act, especially the Chapter XI of the Act are 'local law' as contemplated under Section 106 of the Act and a Code for the purpose of determination or for 'cancellation' of tenancies. In view of these special provisions, the requirement of notice under Section 106 of the Transfer of Property Act is not applicable.'
The Division Bench referred to another decision of this Court in Avula Hanuma Reddy v. The Pushpagiri Mutt (1970 APHC Notes Part II, P. 30), which was observed:
'Where there is a conflict between the provisions of an earlier Act and a later enactment, the provisions of the later Act would prevail over the earlier Act. Where there is a general enactment and also a special enactment, the special law would prevail over the general law irrespective of the fact whether it is earlier or later in point of time. If there is an apparent conflict between two special enactments, the earlier enactment must by implication be deemed to have been overruled by the later one. Where there is a special provision, it should be given effect to the extent of its scope, leaving the other general provisions applicable to cases where such special provisions is not applicable.'
7. After referring to that decision, in Para 13 of. the Decision in Joint Commissioner's case (3 supra) the Division Bench held:
'Having regard to our conclusion, the provisions of Act 17 of 1966 are Special provisions and the provisions of Transfer of Property Act are inapplicable and no notice is required for the termination of the leases under Act 17 of 1966.'
8. The learned counsel for the plaintiffs has argued that the Division Bench was dealing only with the question whether notice as contemplated under Section 106 of the Transfer of Property Act is required to be issued in respect of properties belonging to endowments and any observations made by the Division Bench beyond that are only in the nature of obiter dicta. But the contention of the learned counsel for the appellant is that the Division Bench has based its decision on the principle that where there is special law, it would prevail over the general law and therefore where there are provisions in the Endowments Act regarding leases, those provisions would prevail over the provisions in the Transfer of Property Act and if there is any conflict, the special law would prevail over the general law.
9. At the time when the lease was granted in favour of Ramulu in 1975 the A.P. Charitable and Hindu Religious Endowments Act of 1966 was in force. Section 74 of that Act deals with alienation of immoveable property. Sub- section (1)(a) provided that any gift, sale, exchange or mortgage of any immoveable property belonging to or given or endowed for the purpose of any charitable or religious institution or endowment shall be null and void unless such transaction, not being a gift, is effected with the prior sanction of the Commissioner. Clause (d) provided that every lease of any immoveable property belonging to any charitable or religious institution subsisting on the date of the commencement of this Act shall subject to the provisions of clause (e), continue to be in force till the expiration of its period on the same terms and conditions as on that date. It is pointed out that under this section the Government has framed certain Rules in G.O.Ms. No. 780, Revenue (Endowment- I) dated 4-6-1982. Rule 3(1) provides that all leases of immovable property or rights pertaining thereto belonging to a charitable and religious institution shall be made by public auction provided that the competent authority may permit the lease of any property or right otherwise by public auction if he is satisfied that the interests of the institution will not suffer thereby. Rule 4 sub-rule (1) says that no lease of immoveable property shall be granted for a period exceeding five years and no lease of rights pertaining to any immoveable property such as rights of usufruct etc., shall be granted for a period exceeding one year, except with the prior approval of the Government. Sub-rule (2) says that where it is proposed to grant lease of immoveable property for a period exceeding five years or of the rights pertaining thereto for a period exceeding one year, the executive authority shall obtain the permission of the Government before causing publication of the notice under Rule 6 of these rules. Therefore, it is contended that the maximum period of lease can only be five years unless permission of the Government is obtained and so a lease cannot be granted for more than five years.
10. A reading of the relevant provisions of the Act and rules would show that the tenancy right cannot be more than the period prescribed in the lease subject to a maximum of five years unless permission of the Government is obtained. But the learned counsel for the plaintiffs has contended that in the corresponding provision i.e. Section 80 of the Endowments Act of 1987 which deals with alienation of immoveable property there is no provision corresponding to cl.(d) of Section 74(1) of the 1966 Act and so the procedure prescribed for grant of leases under the provisions and the rules in the old Act are not applicable. But in this case as I have stated above a lease was given to Ramulu from 1-10-1975 when the Endowments Act of 1966 was in force and Ramuiu died some time in 1981. Therefore, by virtue of the provisions of the Act and the Rules referred to above, the lease has come to an end since permission of the Government was not obtained for granting the lease for more than five years. It is also stated that the heirs of Ramuiu are not continuing in possession of the shop because one of their prayers in the suit is to direct the defendants in the suit to give vacant possession of the suit premises. Therefore, I agree with the contention of the learned counsel for the appellant that as the provisions regarding lease of the suit premises are governed by the Endowments Act of 1966 and the rules made thereunder the plaintiffs are not entitled for declaration that they are the lessees of the suit premises and that they should be put back in possession of the suit premises.
11. The learned counsel for the contesting respondents has contended that since both the Courts have held that the plaintiffs are entitled for declaration as prayed for and they are entitled for decree, it cannot be interfered in second appeal. He relied upon the decision of the Supreme Court in Corporation of Bangalore City v. M. Papaiah, : AIR1989SC1809 . in which it is stated that when a finding of fact is recorded by a lower court on the basis of interpretation of revenue record, interference with the finding by the High Court is illegal. But in the present case, based on the Endowments Act of 1966 and the rules made thereunder, which is purely a question of law, I have come to the conclusion that the plaintiffs cannot seek declaration that they continued to be in possession as tenants or for the relief that they should be put back into possession of the property. Therefore, the contention of the learned counsel for the respondents cannot be accepted.
12. The Second Appeal 439/90 is therefore allowed. No order as to costs.