GANJHU UPENDRA SINGH Vs. GANJHU MEGHNATH SINGH

JUDGEMENT

(1.) The appellant is a judgment-debtor who holds a jagir under Government in Ranchi District. His ancestor enjoyed a tenure which was created in 1842 by the proprietor of the Barkagarh estate, granted in consideration of services to be rendered as barkandaz. The estate was subsequently forfeited to Government, and in 1881 there was a formal dispensation with the services which the jagirdar had to render as barkandaz, and a new grant was created of the tenure freed of those services, at an annual rent of Rs. 48-8-0. The new grant created a jagir for the descendants of an earlier jagirdar Ratan Singh to enjoy, so long as any descendants of Ratan Singh should survive. There was a stipulation that the jagirdar had no power to transfer by sale or by creation of mokarrari tenures any part of the tenure, with a liability to resumption if unauthorized transfer should be made. The opposite party sought to bring this tenure to sale in execution of his money decree: but the jagirdar objected that his jagir could not be brought to sale. The Subordinate Judge dismissed this objection on the ground that the tenure in favour of the petitioner's ancestor did not come into existence by the grant of 1881, and on the general ground that where there is a stipulation in a lease restricting the right of transfer by the lessee, his interest can be sold in execution of a decree. The judgment-debtor appealed to the Judicial Commissioner who maintained the order of the Subordinate Judge and dismissed the appeal.

(2.) Mr. S.N. Bose on behalf of the appellant argues that this is a grant of the same tenure as the Grown grant which was the subject-matter of proceedings before the High Court of Madras in Sundararajulu Naidu V/s. Papiah Naidu A.I.R (1938) . Mad. 623, where it was held that the actual interest possessed by the decree-holders was merely a right to enjoy the rents and profits during their lives, and that the tenure enjoyed under a grant from the Government of Madras with a prohibition against alienation could not be sold in execution of a decree. Mr. Bose also refers to the decision of the Judicial Committee in Nawab Bahadur of Murshidabad V/s. Karnani Industrial Bank Ltd. , but there the conditions of the enjoyment of the estate of the Nawab of Murshidabad had been determined by formal legislation and there could be no question regarding the inalienability of the immovable property affected by that legislation. Mr. Bose also lays some stress upon the decision of Sir Stewart Macpherson and Dhavle, J. in Khitnarain Sahi v. Sarju Seth A.I.R (1931) . Pat. 364, wherein the basis of the decision, to use the language of Maopherson, J., was that. property is not liable to sale by the Court unless the judgment-debtor has a disposing power over it or his own benefit. The measure of liability to involuntary alienation is the power of voluntary transfer.

(3.) This part of the decision of the Division Bench of this High Court was cited with approval by Sir Owen Beasley, C.J. in Janaki Ammal V/s. Marudai Chetti A.I.R (1937). Mad. 864. Mr. S.M. Mullick on behalf of the respondent argue in the first place that this jagir ought not to be regarded as a Crown grant at all because it was originally created by a private land, lord as a service tenure. He suggests also that the restriction on transfer merely renders the purchaser liable to find that the grant may be resumed by the superior landlord after purchase, but that it cannot prevent the tenure from being brought to sale in execution by a Court. In Golak Nath V/s. Mathura Nath (1893) 20 Cal. 273, which is cited by Mr. Mullick, it was held that a restriction on assignment in the lease did not apply to an assignment by operation of law taking effect against the will of the lessee by a sale in execution proceedings. Mr. Mullick also cites the decision in Keshab Chandra Pramanik v. Ajahar Ali Biswas A.I.R (1916) . Cal. 175, where it was held that the condition in a permanent lease that the landlord would re-enter if the tenant made any transfer of the land demised did not prevent a sale by the Court. The learned Judges in this latter case distinguished the lease before them from the lease which was under discussion in Vyankatraya V/s. Shivrambhat (1883) 7 Bom. 256, on the ground that in the Bombay case there was a distinct prohibition on the tenant's permitting his tenure to be attached or sold in execution; and Mr. S.M. Mullick argues generally that prohibition against transfer in a grant or a lease does not affect the liability of the tenant to have his estate brought to sale against his will.