AUDIMULAM VENKATASESHAYYA Vs. PENUBOTHA VIRAYYA

JUDGEMENT

(1.) The suit was brought for a permanent injunction restraining the dc fendants from interfering with the possession and enjoyment of certain carpenter service inam lands held by the family of plaintiffs 1 to 3. The lands were mortgaged In the plaintiffs to the first defendant who filed a suit on the mortgage, obtained a decree for sale and had the lands sold through Court at an auction sale at which he Was the purchaser. Thereafter he sold the lands to the second defendant on whose contestfthe suit was dismissed by the Courts below as being barred by res judicata. The plaintiffs' advocate contends that notwithstanding the mortgage, the decree thereon and the Courts sale that followed, it is open to them to plead that the service inam lands were inalienable and that the mortgage decree for sale and the Court sale of such lands were null and void. Both sides have cited a large number of cases.

(2.) An alienation of property may be prohibited either by statute or for reasons of public policy, that is to say, under what may be called the common law of India. A statutory prohibition of alienation might have been enacted on grounds of public policy or in order to protect a particular class of persons. Section 5 of Madras Act III of 1895 and section 4 of Madras Act II of 1904 are instances of the former while section 60 (1) (c) of the Civil Procedure Code is an instance of the latter. The distinction between the two types of cases is that in the former case an alienation contrary to the tatute will be void and can be questioned by the alienor or his heirs while in the latter case a person may waive the benefit or the protection of the statute and be bound by his alienation. The question whethei the prohibition of the statute falls under the first or second category will have to be solved with reference to the terms of the statute and its object or purpose. If the prohibition has some object of public policy, it has to be enforced strictly. The position would be the same if an alienation of certain property is prohibited under the general law on grounds of public policy Lands forming the emoluments of offices of a public nature cannot be alienated by 1 he holder by way of sale, gift or mortgage or sold in execution o{ a decree against him. This had been recognised as a rule of general law based on public policy in connection with inams granted for services in a temple, in Lakshmanasivamy Naidu v. Ranvamma,(1902) I.L.R. 26 Mad. 31. Anjaneyulu v. Sri Venugopal Rice Mill Ltd., Tenali, (1922) 42 M.L J. 477 : I.L.R. 45 Mad. 620 (F.B.). Sundaraiaja Dikshitulu v. Seshadri Dikshitulu, (1927) 54 M.L.J. 76. Ramanathan Chettiar v. Kalidasa Kavundan, (1936) 71 M.L.J. 398. Adinmayana. Chetty v. Chengiah, A.I.R. 1937 Mad. 918. and Dasabhadam inams in Ramakrishnamma v. Venkatasubbaiah, (1934) 68 M.L.J. 46; I.L.R. 58 Mad. 389. Lakshmadu v. Ramudu, I.L.R. (1940) Mad. 123. Kotayya v. Subbarayudu, (1956) An. W.R. 739 : 1956 A.L.T. 99. Section 5 of Madras Act III of 1895 which prohibits voluntary alienation as well as an attachment and Court sale of lands forming the emoluments of village offices, one of which is that of a village carpenter is based on considerations of public policy in order to prevent the dissociation from the office, of the emoluments attached thereto, for such dissociation impairs the efficiency of the service to be rendered by the carpenter to the villagers and thus injuriously affects the interests of a section of the public. See Raja of Vizianagaram v. Dantivada Chelliah, (1904) 14 M.L.J. 468 : I.L.R. 28 Mad. 84. Anjaneyulu v. Sri Venugopal Rice Mill, Ltd., Swami v. Seethaiah, (1935) 70 M.L.J. 366 ; I.L.R. 59 Mad. 354 (F.B.).

(3.) What is to happen, if, without any objection being raised on the score of the land being village service inam a decree for sale of the land has been passed in a suit to which the holder of the inam is a party ? Is the Court bound to execute the decree and is the judgment-debtor precluded from objecting to the execution sale by proving that the land sought to be sold is in fact service inam land, though it does not so appear from the decree? In Raja of Vizianagaram v. Dantivada Chellaiah, the Court held that the objection to the deciee could be raised at the stage of execution. The ratu decidendi was this :