KRISHNAJI DATTAMBHAT JOSHI Vs. PARAPPA DATTO PATIL

JUDGEMENT

(1.) THIS is an appeal from a decision of the Assistant Judge of Belgaum. The material facts are that defendant No.2 and the plaintiff are father and son, members of a joint family, and part of the coparcenary property consists of some Joshi service inam land, in the year 1922 defendant No.2, as manager of the family, mortgaged this Joshi service inam land to defendant No.1 for Rs. 300. In 1928 defendant No.1 obtained a mortgage decree against defendant No.2, and in 1933 defendant No.1 issued a darkhast and obtained an order for sale of this property. In March, 1935, the plaintiff filed the present suit asking for a declaration that the Joshi service inam land is inalienable and not liable to be sold in execution of the decree of defendant No.1, and he asked for an injunction restraining defendant No.1 from selling any portion of the land in execution of the decree. The learned trial Judge held that the land was inalienable but that defendant No.2 was estopped from raising the point by virtue of the decree which had been obtained against him, and accordingly the learned Judge made a declaration that the plaintiff's joint half share in the suit land was not liable to sale in execution of the decree and that defendant No.2's joint half share in the suit land was liable for sale. What exactly that order amounts to, I am not sure. The property being joint, all that sale of defendant No.2's interest would amount to ultimately would be a right to the purchaser to apply for partition of the property, and having got partition, he could then sell defendant No.2's share. In appeal the learned Assistant Judge held that the property was not inalienable and also that the plaintiff was bound by the decree obtained against defendant No.2, the manager of the property, and he dismissed the plaintiff's suit. From that order this appeal is brought.

(2.) ON the first question as to whether this land is alienable or not, it seems to me clear that under the sanad, by which Government granted the land, it is made inalienable. The sanad is in the ordinary form used for grants of land given in return for services to be rendered to a village community, and such lands are normally rendered inalienable. This Court in an unreported case, Narayanbhat Gundbhat joshi v. Vishnu Abarao Mahajan (1936) S.A. No.800 of 1932," decided by N.J. Wadia and Sen JJ., on August 19, 1936, (unrep.) dealing with a sanad in the same terms as the present sanad, held that the land was inalienable, and I feel no doubt that that decision is right. Act XV of 1895, to which the learned Government Pleader referred, saves restrictions on alienation in grants by Government, from any objection under the Transfer of Property Act. I think, therefore, that the suit land is in fact inalienable.

(3.) I agree.