Punya Raulo vs Khetra Gauda

Dhavle, J.—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 u/s 5, Madras Hereditary Village Offices Act (3 of 1895). This contention has been overruled by the lower Courts on the authority, in particular, of Vengali Venkanna and Others Vs. Polamarasetti China Appala Swami, , 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.

It has been urged on behalf of the petitioner that this view is not correct. Reference is made in the first place to a In Re: Ponnusami Pillai, 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.

The learned advocate for the petitioner has also referred to Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), in 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 u/s 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.

It has, moreover, been expressly held in Kshetrabaro Bissoi v. Hari Kristna Mad. 340, that Section 5 of the Act, 3 of 1895 does not bar even a permanent lease of lands '' forming the emoluments of a village office. In the present case, the standing crops, of which the Rajabhagam is in suit, were specifically purchased by the plaintiff along with the blacksmith service inam land; and the plaintiffs claim is supported by Narasingham. The sale of the standing crops of Pasli 1347 the assignment of the landlord''s Rajabhagam which is what we are really concerned with, must, I think, be distinguished for the purposes of this case from the sale of the land itself. It is true that in Kannam Naidu v. Latchanna dhora 23 Mad. 492 Section 5 of the Act was held to prevent the attachment of growing crops on the ground that it would seriously affect the object of Act 3 of 1895 to hold that the expression ''land'' does not include growing crops, but the question of attachment of growing crops is very different, I conceive, from the validity, as against the cultivating tenant, of the assignment of one year''s Rajabhagam when supported by the assignor. Whether the transfer of village service land contrary to Section 5 is ab initio void arose for decision in the case in Vengali Venkanna and Others Vs. Polamarasetti China Appala Swami, , already referred to, in the following manner. The plaintiff there had sued for the recovery of the money that he had paid to defendants 1 and 2 for his purchase of 1909, after defendants 3 and 4 had succeeded in recovering possession of the service land in 1918 under Act 3 of 1895 through the revenue Court; and the question arose from what time limitation was to run. Defendants 1 and 2 who had sold the land to the plaintiff sought to make out that the claim was barred by limitation by urging that the failure of consideration on which the claim was grounded dated from the sale itself. In support of this position they had to contend that the sale was void ab initio. This contention was overruled on a construction of Section 5 of the Act. The plaintiff had come into possession of the land under the title obtained from these defendants. This title no" doubt depended on the right of the defendants themselves to hold the office and with it the land which formed its emoluments a right which came to an end on the appointment of defendants 3 and 4 as their successors. Plaintiff was thus liable to be displaced by a superior right, but until this was done, he had continued in possession under the title, such as it was, that he had derived from the transferor defendants and he was entitled to maintain that possession except as against those who had the superior right, the vendors themselves having been content to leave him undisturbed. He could not, therefore, have been heard to deny possession under the purchase until his eviction by defendants 8 and 4. As against defendants 1 and 2 the failure of consideration could only be urged as from the eviction. The suit was, therefore, held to be in time under Article 97 of Schedule 1, Limitation Act. This would necessarily imply that the sale was operative as long as the vendors had the right to hold the office, and Devadoss, J., construed Section 5 as not inconsistent with such a position. In making the emoluments of village offices not liable to be transferred'' the Legislature seems to have intended to provide for keeping them intact for the succeeding holders of the offices; the Act says nothing about transfers being void and confers upon the Collector an exclusive jurisdiction to try suits "for offices, for recovery of emoluments, and for registry as heir" in case of vacancy. If the transferor himself should challenge the alienation as in the case in Kshetrabaro Bissoi v. Hari Kristna 33 Mad. 340 the suit will lie in the civil Court. In the present case Narasingham has actually supported the plaintiff, and we are not concerned with what is to happen if the authorities should appoint another person to hold the office and he should sue for recovery of the land. As the cultivating tenant under Narasingham the defendant would have been bound to deliver the Rajabhagam to Narasingham, and it is difficult to see on principle why Section 5 should be taken to mean that he can escape this liability merely because Narasingham has assigned the corresponding right to the plaintiff. No Madras decision has been brought to my notice in which Devadoss J.''s view of Section 5 in the case in Vengali Venkanna and Others Vs. Polamarasetti China Appala Swami, , was criticised, and I am unable to accept the contention that it is not a correct view, especially in a case in which the question of title to the service land does not properly arise and the assignment of the. Rajabhagam is not only not challenged but is actually supported by the man to whom the defendant would otherwise have been liable to deliver the paddy. The action of the lower Courts, moreover, in proceeding upon the view taken in Vengali Venkanna and Others Vs. Polamarasetti China Appala Swami, , could not be interfered with in revision, even if the view were shown to be incorrect, for it would amount to no more than an erroneeus conclusion of law, and it was settled long ago by their Lordships of the Judicial Committee in Amir Hassan Khan v. Sheo Baksh Singh11 Cal. 6, that such an error does not warrant interference in revision.

The Advocate-General who appears for the petitioner has, upon this, argued that the lower Courts had no jurisdiction to entertain the suit in view of the provisions of Sections 21 and 13 of the Act. Section 21 provides that no civil Court shall have authority to decide any claim to succeed to any of the offices specified in Section 3 or any question as to the rate or amount of the emoluments of any such office, or except as provided in proviso (ii) to Sub-section (i) of Section 13, any claim to recover the emoluments of any such office. Section 13 confers upon the Collector jurisdiction to hear "suits for offices, for recovery of emoluments and for registry as heir" (a marginal description which gives a pretty accurate idea of the scope of the section). It has been repeatedly held in Madras that the two sections must be read together and that notwithstanding the apparent generality of the language of Section 21 it must be held that the section takes away the jurisdiction of civil Courts only in those cases in which jurisdiction is conferred on revenue Courts by Section 13: see for instance, Seetharam Naidu v. Doddi Rami Naidu 33 Mad. 208 which related to a suit for the recovery of a village officer''s inam land on the expiry of a lease granted by the officer to the defendant. The learned Judges referred to the general principle of law that every presumption shall be made in favour of the jurisdiction of a civil Court and that it shall not be taken away except by express words or by necessary implication; and they held the suit to be cognizable by the civil Courts as the plaintiff had only to prove the letting and expiry of the term and was not called upon to prove his title, the defendant being estopped from disputing it in such a case. Our plaintiff does not claim to hold any village office, nor has he brought his suit for recovery of the emoluments of any such office. It is true he has brought a suit for the Rajabhagam of the paddy grown on the lands forming the emoluments of the village blacksmith but the claim is based on the defendant''s tenancy under the blacksmith and a transfer of the Rajabhagam due to the village office-holder in favour of the plaintiff. In Sahadeva Reddi Vs. Lingappa Asari and Others, , it was held that a suit by the lessee from the previous holder of a village office the lease being continued by the succeeding holders defendants 1 and a, for the emoluments of the office lay not in the revenue Court but in the civil Court, even though defendants 8 to 8 denied the title of defendants 1 and 2. Jackson, J. observed that bar of Section 13 is confined to persons "claiming their own rights as holders." That the present suit is brought not by a lessee but by an assignee from the holder of the village office is immaterial; it is nonetheless not a suit by a person claiming as a holder of a village office. Yandluri Yellamanda Vs. Kunchala Chitambaram (died) and Others, , a Bench decision cited before me, is another instance in which the civil Court was held to have jurisdiction to entertain a suit for the recovery of inam land, brought by the office-holder, on the expiry of a cowl--cosharer who had been impleaded as defendant 12 denied the plaintiff''s share, but it was held that this did not make Section 13 applicable. In my opinion therefore the suit was properly entertained by the trial Court, the bar of Section 21 read with Section 13 being inapplicable. The result is that the application fails and must be dismissed with costs. Hearing fee, one gold mohur.