NETI ANJANEYALU Vs. SRI VENUGOPAL RICE MILL (LIMITED)

JUDGEMENT

(1.) In this case an inam was granted by a Zamindar to the ancestor of the petitioner on terms that he should do Swastivachakam service in a temple and he and his family should enjoy the inam so long as they did this service. In 1860 the Inam Commissioner confirmed the grant "to be continued so long as the service was performed". This appears from the extract from the Inam Register produced before us. The total area of the land comprised was about ten acres, the produce or revenue from which would be not more than sufficient to provide a living for the inamdar for the time being.

(2.) A judgment having been obtained by the respondent against the present inamdar, he applied to attach the land comprised in the inam in execution and he desires the Court to sell it to satisfy the judgment debt. On behalf of the inamdar it is contended that so long as the services are rendered the land is not saleable in execution. Now, it is clear law that the Court can only sell in execution property which the judgment-debtor can lawfully alienate, and the question to be decided is whether an inamdar can sell the property. It is argued on his behalf that it cannot be attached under Section 60 of the Civil Procedure Code and is inalienable under Section 6 of the Transfer of Property Act. Section 60 of the Civil Procedure Code forbids the attachment of a right of personal service. In my judgment, what is sought to be attached in this case is the land, and not the right of personal service, and therefore that section has no application. Section 6, Sub-clause (d) of the Transfer of Property Act includes among the properties that cannot be transferred an interest in property restricted in its enjoyment to the owner personally. It is certainly arguable that this property is restricted in its enjoyment to the owner personally, owner meaning the inamdar for the time being. Although I think that is arguable, and it may be that this inam is covered by these words, I prefer to base my decision on another subsection of the same section. Sub-section (f) provides that a public office cannot be transferred nor can the salary of a public officer. I do not think that this sub-section applies. Sub-section (h) provides that no transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby or (2) for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872. That is what appears to the court to be contrary to public policy. The latter portion has been incorporated in this sub-section by a later Statute. In my Judgment, the sale of such property is opposed to the nature of the interest affected and also is contrary to public policy. The right -to enjoy the property is as long as the inamdar renders services in the performance of which the public have an interest. If the inamdar sold the property, it is obvious that he would in all probability no longer perform the services; and further, it is quite opposed to the nature of his interest and duty, namely, that he should enjoy the produce of the land as salary for the public services he has to render, that he should sell it or alienate it, leaving himself without the means of subsistance and without further interest in the place or in the performance of the services. It is also to be observed that, if the property were sold, the purchaser would get no title of any value, for at any moment the property might revert to the Zamindar or the Government, as the case may be, when the inamdar ceases to render such services. Further under Standing Order 54(1) of the Standing Orders of the Board of Revenue the Government can resume possesesion of a charitable or religious inam immediately on alienation.

(3.) The view that I am taking is supported by authority, In Pakkiam Pilial V/s. Seetharama Vadhyar (1903) 14 M.L.J. 134 Benson and Bhashyam Ayyangar, JJ., held that any alienation of land which is held by a person as an emolument attached to a spiritual office in a village is void against the rightful holder. In Govinda Goundar V/s. Ramien (1914) 25 I.C. 600 which was heard by Sir John Wallis. C. J. and Seshagiri Aiyar, J. it was held that a service inam is land which the owner is incompetent to alienate within the meaning of Secs.31(2) and 32(1) of the Land Acquisition Act. It is true that a another statute was in question but the principle underlying, that case seems to be the same as in this. In Venkataranga Charlu V/s. Krishnama Charlu (1911) 12 I.C. 710 S.C. : (1911) (2) M.W.N. 473 a case of a sale in execution, Abdur Rahim and Ayling, JJ. held that an inamdar of land for services similar to this cannot alienate it. We sent for the record of that case and found that the point had been raised and decided before the District Munsif and the District Judge. The point was also one of the grounds of appeal when the case came up before the High Court, and it must be taken, on those facts, that the point was considered and decided by the Court that heard the appeal. It is to be observed that one of the learned Judges in that case is the Judge who in this case takes the opposite view; presumably his attention was not called to his previous decision in Venkatarangacharlu V/s. Krishnamacharlu (1911) 12 I.C. 710. In Rajah Nilmonee Singh Deo v. Kashe Mahtoon (1875) 25 W.R. 206 it was held by Mitter, J. that a service tenure can be sold in execution of a decree for the arrears of its own rent provided that the service due from the holder be of a private kind, and personal to the plaintiff, but not where the service is of apublic kind as in the case of a police jagheer. That lays down a proposition that land burdened with the performance of a service of a public nature is inalienable. In my Judgment, this land was burdened with the performance of a service which is of a public nature.