Chevendra Venkata Kutumba Rao vs V. Govardhanam Appalacharyulu

Umamaheswaram, J.—The short question of law that arises in this case is whether standing crops on the property constituting the emoluments of archa-katvam service are attachable and liable to be brought to sale in execution of a decree.

The Courts below have held that as the archakatvam service lands are not alienable, the standing crops are also not liable to be attached. The identical question arose for consideration before a Bench of this Court in Kesvacharyulu v. Venugopalaswamy Varu 1955 AP WR 480 : AIR 1956 AP 109) (A) Bhimasankaram, J., delivering the judgment of the Bench held that Clauses (h) and (i) of the proviso to Section 60 did not apply and that the crops might be attached. It was further held that even the crops raised on the lands set apart for paditram, etc., were liable to be attached.

Sri Veerabhadraiah the learned Advocate for the Respondent, conceded that the decision directly governed the case. But he argued that as the learned Judges did not consider the terms of Section 6 (h) of the Transfer of Property Act, the matter might be referred to a Bench or a Full Bench. In support of this argument he relied upon three decisions of the Madras High Court.

The first case referred to by him is Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), . It was by the Full Bench that "Lands held on Swastivachakam service tenure lot subject to attachment in execution of a as the sale of such lands is opposed to Public policy and the nature of the interest affected.

At page 624, (of ILR Mad): (at p. 198 MR) Schwabe, C.J.; observed as follows:

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 had to render) that he should sell it or alienate it, leaving himself without the means of subsistence and without further interest in the place or in the performance of the service.

The point that arose for decision in the case was only whether the service inam lands and not the crops standing thereon were liable to be attached and brought to sale or not. No doubt, in arriving at the conclusion that the lands were not liable to be brought to sale, it was observed that the Inamdar ought not be deprived of the income. The decision does not directly bear on the point to be decided in this case.

Reliance was placed on the decision in Sundara, Raju v. Seshadri AIR 1928 Mad 35 (C) which a Bench of the Madras High Court held that the grant of a lease for thirty years of archakatvam service lands was not valid and binding, The observations relied on are at page 37 and are as follows:

The real question is whether toe transaction in effect places the income from the lands beyond the disposal of the holder of the office and events him from enjoying the emoluments which are intended to go to the holder of the office order to enable him to discharge his duties properly.

Ordinary leases for short terms has been upheld on the ground that leasing the lands the usual or the beneficial mode of enjoyment although the land is cultivated by the lessee he says the rent to the lessor for his sustenance. In Bamanathan v. Kalidasa Davandan, AIR 1938 ad 559 (D) Venkataramana Rao., J., applied the ''.gashing of ...the Full Bench and the Division decisions referred to supra to the case of a mortgage of; temple service inam lands. It was intended before him by Mr. Patanjali Sastri that mortgage would not necessarily lead to the derivation of the land to the inamdar as a receiver be appointed to appropriate the profits towards the debt after making due provision for the maintenance of the holder of the inam. The [earned Judge repelled the argument and held that the fact that the Court might choose to appoint a Receiver in particular cases, could not be taken into account in testing the validity of an allegation of the lands.

The basis of the decisions that the alienation of the inam lands is invalid is, no doubt, that the inamdar should not lose the benefit of the income as otherwise he might not perform for the services. No case has however been cited before me in which it has been held that the transfer of the income of the standing crops by the archaka is invalid u/s 6 (h). It is conceded that the income received from the lands is absolutely at the disposal of the archaka. it is even regarded as joint family income in which the widow of,a member of the joint family is entitled to receive maintenance.

Section 6 of the Transfer of Property Act in s0 far" as it is relevant runs as follows:

Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

(h) 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 consider on within the meaning of Section 23 of the Indian Contract Act, 1872, or to a person legally disqualified to be transfer.

A plain reading of the section shows that the transfer of standing crops which are at the absolute disposal of the archaka is not opposed to Public policy. If it is open to him to transfer the standing crops, I fail to see how those crops, which are movable property within the meaning of Section 2 (13), CPC Code(CPC), are not liable to be attached u/s 60 and be brought to sale by a decree-holder. The learned Advocate contended that if the crops are allowed to be attached and brought to sale year after year, serious hardship ground for holding that any principle of -public policy is violated. In thj& connection it is necessary to refer to a Privy Council decision cited by Venkatrama Sastri, the learned Advocate for the Petitioner, namely, AIR 1931 160 (Privy Council) . Lord Mac-millan, in delivering the judgment of the Judicial Committee, discussed the question as to whether a Receiver might be appointed for realising the rents under the provisions of the Murshidabad Act. At page 211 (of Mad L.J.): (at o. 161 of AIR), the learned Lord observed as follows:

Now while the Murshidabad Act renders the Immovable properties to which it relates inalienable except: to-the limited extent permitted, it imposes no restriction on the enjoyment of the rents by the Nawab Bahadur for the time being. So long as he is entitled to draw the rents he may dispose of them as he pleases. It is true that the income of the properties was conferred on him to enable him to maintain his dignity and station, but should he fail so to apply it the Secretary of State is given the special power of stepping in and drawing the rents himself and applying them for the Nawab''s benefit. The Nawab therefore has a disposing power over the income. Once this is established no question of public policy is involved and their Lordships are unable to see that either the terms of the statute or the indenture are contravened by aiding the creditors of the Appellant to effect payment out of his income of the debts which he has incurred.

The observation apply ad idem to this case. As in the Privy Council decision, the income of the properties is at the absolute disposal of the archaka, and it is attachable under the provisions of Section 60, CPC Code. The cases relied on by the learned Advocate for the Respondent are all cases in which there was an alienation of the inam property. In none of those cases was it decided that the income which belonged absolutely to the archaka could not be transferred or disposed of by him or was not liable to be attached at the instance of the decree-holder. On the other hand the observation of Venkatarama Rao, J., in Ramanatham v. Kalidas, AIR 1936 Mad 559 (F), support the contention that a receiver might be appointed in regard with income from inalienable inam properties.

It is therefore not necessary to refer the matter to a Bench or a Full Bench. I follow the Bench decision in Keshvacharyulu v. Venugopala-swamy Varu, 1955 Andhra WR 480 : AIR 1956 Andhra 109 (G), and hold that the standing crops are liable to be attached and that the terms of Section 6 (h) of the Transfer of Property Act ave in no way violated.

In the result, the Civil Revision Petition is allowed with costs throughout.

Before concluding the judgment, I must express my indebtedness to the able arguments addressed by Advocates on both sides.