JAGIR ADMINISTRATOR Vs. GULAM AHMED KHAN

JUDGEMENT

(1.) The short point that falls for determination in this Civil Miscellaneous Appeal is whether the Judgment-debtor can contract out of or waive the benefit of section 9 of the Hyderabad Jagirs Commutation Regulation, 1359-F. (No. XXV of 1359-F.) That provision reads thus :-

(2.) The learned Fourth Additional Judge, City Civil Court, in execution of a decree, directed as against this mandatory provision, attachment of the entire sum standing to the credit of the judgment-debtor by June, 1961. The Jagir Administrator raised objection, for, as per that provision not more than one half of the share or allowance is liable to attachment. The learned Fourth Additional Judge repelled this contention on the ground that the objection, if at all, could be taken only by the judgment- debtor and that it was not open to the Jagir Administrator to raise the objection for the attachment. He further observed that since the judgment-debtor did not raise any objection and in fact acquiesced in and waived his right, attachment of the entire amount was lawful. It is difficult to accept this proposition. It is no doubt true that every one has a right to waive and agree to waive the advantage of law or a rule made solely for his benefit and protection in his private capacity which may be dispensed with without infringing any public right. But it is not open to the individual to waive such benefit or contract out of it if that benefit is conferred on him on grounds of public policy for he cannot possibly do so without offence to public policy and it is always for the state to safeguard the same. In our judgment section 9 of the Hyderabad Jagirs Commutation Regulation is strongly mandatory and the benefit conferred thereunder is based on public policy. In these circumstances, the learned Judge went wrong in holding that the silence or the waiver on the part of the judgment-debtor could be a lawful defence for the violation of the mandatory provisions of section 9. It is but elementary that the mandatory provisions are to be obeyed in full. He was therefore bound to give full effect to the provisions of section 9. Since he has not done so we have no other course than to allow this appeal and remand the case.

(3.) At this stage we may also notice the fact that the Custodian has filed an application to be brought on record as a co-respondent in this appeal. We think it unnecessary here to dispose of that petition for the matter is being remanded to the Court below. It is open to the Custodian to take such steps in the lower Court as he may think necessary in this behalf and get appropriate orders. Costs of this appeal will abide the result of the case in the lower Court. Appeal allowed; Case remanded.