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Judgment
Chandra Reddy, J.—The subject matter of the giving rise to this second appeal is a purohit se(sic) am of an extent of ac. 3-85 cents in Korupalli village of West Godavari District. The plaintiff, one the villagers, brought the suit as representing all (sic) villagers for a declaration that an alienation of is inam by the 1st defendant, the father of defendants 2 to 4 does not bind the successor-in-office of (sic) 1st defendant. The 5th defendant obtained a (sic)se of the suit property under Ex. D-1 on 24th of (sic)pt. 1942 for a period of fifty years paying a pre(sic)m of Rs. 3,348 without reservation of annual (sic)t. The remainder right was transferred on 11-1-1943 to the sister-in-law of the 5th defendant namely, 6th defendant for Rs. 500/-. The plff''s case is (sic)t the 5th defendant resorted to this device with view to purchase the property outright and both (sic)med part of the same transaction. The basis the suit is that the lease was hit at by S. 5 of the (sic)reditary Village Offices Act as well as S. 6 (h) the Transfer of Property Act.
Several defences were raised to the suit, (sic)ely, that the land in question did not constitute inam, that the lease in question did not amount an alienation within the purview of either of the (sic) provisions of law and consequently not void or (sic)n voidable as the 1st defendant continued to in the village and render service and that lastly plaintiff had no locus standi to maintain the and that, at any rate, the failure to implead the. (sic)ernment as a party was fatal to it. The trial (sic)t dismissed the suit holding against the plain-on the issues, whether the property formed an (sic), and the maintainability of the suit. On ap(sic) the Subordinate Judge while upholding the (sic)m of the plaintiff to file the suit refused to grant decree as, in his opinion, the alienation could not treated as invalid. He found that the 1st defendant left the village and did not render any ser(sic). The conclusion of the lower appellate court as (sic)rds the validity of the lease is impugned before in this second appeal brought by the aggrieved plaintiff.
The arguments advanced by Mr. Rama(sic)dra Raju for the appellant is that dehors Sec. 5 (sic)e Madras Hereditary Village Offices Act, the action in question attracts S. 6 (h) of the Trans(sic)f Property Act as it is opposed to public policy, (sic)ely, that the holder of the service should not (sic)eprived of emoluments or income from the lands (sic)hed to his office. On the other side, Mr. Suryanarayana contends that leases of this type are permis(sic) both under S. 5of the Hereditary. Village Office Act and S. 6 (h) of the Transfer of Property Act, (sic)ch transfers are not contrary to public policy, point for determination is whether this transac(sic)nfringes either Section 5 of the Madras Here(sic) Village Offices Act or S. 6 (h) of the Transfer Property Act.
I will first take up the applicability of S. 6 the Transfer of Property Act to the instant That section recites that no transfer can be in so far as it is opposed to the nature of the (sic)t affected thereby or for an unlawful object or (sic)leration within the meaning of S. 23of the of Contract Act or to a person legally disquali(sic) be a transferee. The principle embodied in (sic)iction is based on public policy. It is argued (sic)e respondent that being a lease it is compe(sic)ar a service-holder to lease out the property end it is not contrary to public policy and does not fall within the purview of Sec. 6 (h). In support of this reliance is placed on Peda Yerranna v. Somanna, 69 Mad LJ 115: (AIR 1935 Mad 320/(A). I do not think that that ruling has a material bearing on the present enquiry. The question there was whether the transaction was of a kind prohibited by the Madras Hereditary Village Offices Act which lays down that the emoluments 8f village officers shall not be transferred, or encumbered in any manner whatsoever.
The learned judges answered it in the negative. The dispute there was between a person who was in possession of a service inam under a Khanda gutta couwle executed for a period of 33 years & another who obtained a decree against the lessor and purchased it in court auction in execution of his decree. It may be mentioned that after this lease the Government resumed the inam and regranted it to the lessor. It is in that context that the learned Judges answered the question in the negative.
The learned judges observed that at first they were impressed with the disadvantages of permitting a transaction and were inclined to hold that a lease of the kind which" afforded no annual income would fall within the ''mischief of the rule, and there was some support for that in Archaka Sundara Raju Dikshatulu Vs. Archaka Seshadri Dikshatulu and Others, . But they felt that the ruling referred to did not deal with the terms of the statutory provision and that while some kinds of leases offend against the section while others do not, it was difficult to place any definite construction upon the words "liable to be transferred or encumbered".
They also thought that the Government had other methods of dealing with such a case and that in fact the alienation was treated as a ground for resuming the inam and further the purchaser in the court auction purchased property with his eyes open to the existence of the lease and therefore they were inclined to exclude the lease from the operation of S. 5. The learned Judges recognised that the intention of the rule in S. 5 of the Hereditary Village Offices Act was to ensure that the property which furnished emoluments of the office was not so dealt with as to put an end to these emoluments either permanently or for a term of years as in the case of a mortgage so that the emolu(sic)ts for alienors might be conserved and also that he himself might derive every year income from the property. It is thus clear that they were not dealing with the principle underlying Section6 (h) of the Transfer of Property Act. Further, all that they decided was that the lease was not void. They had not to consider whether it was voidable or not.
Nor does Kamara Peda Subbayya v. Kakerla Chennanpa, 28 Mad LJ 303 : (AIR 1916 Mad 642(2)) (C) called in aid by Mr. Somasundaram render any assistance to him. There, the transaction was a lease for a period of 45 years for a premium of Rs. 45/-. There was a provision for setting off the annual rent against this premium and it was held that being a lease it did not fall within the prohibition of S. 5 of the Madras Hereditary Village Offices Act and it would not enure beyond the lifetime of the alienor. Here again, the provision of law that, fell to be interpreted is S. 5of the Hereditary Village Offices Act. This decision has also enunciated the principle that the lease would not have effect after the life-time of the lessor.
This case is more helpful to the appellant for the reason that the relief sought by him is only a declaration that it is voidable and does not bind the successor-in-office. It has also to be noted that the finding of fact which is not challenged before me is that the 1st defendant has left the village and ceased to render any service nor had he made any arrangements in Chat direction. The doctrine of 28 Mad LJ 303: (AIR 1916 Mad 642(2)) (C) would extend to a case where the service-holder had given up performing service for the office to which the inam is attached,
That apart, different considerations arise in regard to an enquiry under S. 6 (h) of the Transfer of Property Act. The idea underlying the granting of inams to service -holders was that they might derive an annual income from it and render satisfactory service. It is true that a lease by itself will not be inoperative and will not attract the operation of S. 6 (h) because that is one of the modes of enjoying the property. If under the lease a provision is made for payment of rent by which he could sustain himself, that is a valid transaction since that answers the purpose just as well as. of receiving income by himself cultivating the land. If, on the other hand, all the rent payable by the lessee is to go in reduction of a premium received at the time of the granting of the lease and thus places himself beyond the reach of the income, that would contravene the principle embodied in S. 6 (h).
After the decision of the Full Bench in Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), it is futile to contend that an alienation for a considerably long period is not invalid notwithstanding that the lease in question had the effect of depriving the service-holders or his successors of the income of the land during the continuance of the lease. Schwabe, C. J. who delivered the main judgment would not countenance even the theory that the service-holder could sell out and out for the period of his life during which he lived and rendered service. In his opinion such an alienation would be quite contrary to public policy. However, the inamdar could let the properly during the time he was rendering service as a normal mode of enjoying the land.
The learned judges approved of cases which hold that any alienation of land which was held by a person as an emolument attached to an office in a village was void against the lawful holder. Another Full Bench of the same. High Court in Gokavarapu Swami Vs. Manda Satheyya and Another, also ruled that growing crops on a village service inam was exempt iron attachment in execution of a decree against the service-holder as they are annexed to and form Part of the emoluments attached to that office. The effect of this ruling is also the same as the rule stated in the other Full Bench case.
So, the principle deducible from all these decisions and the statutory provision enacted in S. 6 (h) is that if the service-holder had placed himself beyond the reach of the income from the inam which is attached to the office by a transaction, be it a lease or a mortgage or a sale, it would be inoperative and invalid. The ratio of the principle has already been stated, namely, that by being deprived of the (sic) come therefrom he cannot satisfactorily render s(sic) vice for which purpose the inam is granted. Ev(sic) under Sec. 5 of the Madras Hereditary Village O(sic)ces Act, the lease became inoperative after the less left the village permanently without making any (sic) rangements for the performance of service.
In these circumstances, the transaction in disp(sic) must be declared to be voidable as claimed and d(sic) not bind the successor-in-office and a decree sho(sic) be granted in favour of plaintiff. It follows that (sic) appeal is allowed with costs here and in the t(sic) Court. In the lower appellate court the pari(sic) will bear their own costs.