PUNYA RAULO Vs. KHETRA GAUDA

JUDGEMENT

(1.) This application arises out of a suit for the value of Rajabhagam paddy of 1.90 acre of land for fasli 1347. It was common ground that the land was the blacksmith service inam land of one Haddu Muli. After Haddu's death his children, Narasingham Muli and others, sold the land in September 1987, with the standing crop, to the plaintiff. Narasingham did not succeed in an attempt to get himself registered as the holder of the inam land, but the defendant had gone on cultivating the land under him since Haddu's death, though without any muchalika. Defendant was told by Narasingham to give the Rajabhagam to the plaintiff, but failed to do so. To this case of the plaintiff's the defendant's reply was: that the holder of the land was one Munguli Muli, and not the plaintiff's vendors, but this defence broke down completely. Another line of defence was that the land being a village service inam, the sale to the plaintiff was ab initio void under Section 5, Madras Hereditary Village Offices Act (3 of 1895). This contention has been overruled by the lower Courts on the authority, in particular, of Venkanna V/s. Appalaswami A.I.R. 1925 Mad. 749, case in which Devadoss, J. took the view that Section 5 of the Act (3 of 1895) under which a village service inam cannot be transferred either by act of parties or through Court does not prevent the person who is the village officeholder from either leasing the property or transferring it for consideration during his lifetime. Under the Inam law, the Government is the owner of the property and an office-holder is entitled to the usufruct of the property during the time he holds office. The moment he resigns it or he is dismissed or dies, his successor will be entitled to the property, so long as he holds the office, he enjoys the inam arid a transfer by him of the land is not absolutely void. It is good so long as he is alive, but the vendee cannot assert a title either against the Government or against the successor-in-office of the person who transferred the property to him.

(2.) It has been urged on behalf of the petitioner that this view is not correct. Reference is made in the first place to a Gopala Dasee V/s. Rami A.I.R. 1921 Mad. 410 in which mortgages of unenfranchised service inam lands were taken to be "by the provisions of Section 5, Madras Act 3 of 1895, clearly void" but it is to be noted that the defendants who had admittedly been in possession under these mortgages for more than 12 years and claimed, if the mortgages were void, to have acquired an absolute title by prescription, were held (as contended by the mortgagors themselves) to have prescribed for the interest of usufructuary mortgagees. It thus appears that though the section provides that the emoluments of village offices shall not be liable to be transferred or encumbered in any manner whatsoever the case in question actually furnishes an instance of the acquisition of mortgagee rights in the land forming such emoluments.

(3.) The learned advocate for the petitioner has also referred to Anjaneyalu V/s. Sri Venugopala Rice Mill A.I.R. 1922 Mad. 197in which dissent was expressed from the view that an inamdar can sell his inam out and out for the period of time during which he lives and renders services. The point for decision in that case, however, was whether it was open to a decree-holder, in execution of his decree, to attach and sell lands held by the judgment-debtor on a Swastivachakam service tenure. This was decided in the negative because (as the placitum puts it) the sale of such lands is opposed to public policy and the nature of the interest affected the reference being to Section 6(h), T.P. Act; this point would, of course, have been quite unarguable if the case had been governed by Section 5 of our Act which goes on to make it "not lawful for any Court to attach or sell such emoluments or any portion thereof." Schwabe C.J., who delivered the leading judgment in the case, recognized that the question whether or not an inamdar can alienate the inam land during his lifetime while he rendered service did not really arise directly in that ease, as the application in the case was for sale of the land out and out but he expressed an opinion on the point because the execution creditor would have a right, if such land is alienable for such period, to sell for that period. Such a question could not, as I have already said, have arisen under Section 5 of our Act, 3 of 1895, with the specific protection it gives to village service lands by exempting them from attachment. It is also to be noticed, as pointed out by the District Judge, that even on the general consideration referred to by him, the learned Chief Justice could see nothing contrary to the interest of the inamdar and nothing contrary to public policy in the letting by the inamdar of the land, so that although the land is cultivated by some one else, he provides for himself what was intended he should have, namely, a subsistence out of the land. This he could get in the shape of rent which answers the purpose just as well as obtaining profits from the actual cultivation of the land.