Vaddadi Sannamma vs Koduganti Radhabhayi and Others

Sur John Wallis, C.J.—I am clearly of opinion that, when a party has been properly impleaded as one of the Defendants in a case and the

case as against him would have proceeded to judgment but for the fact that the Plaintiff elected to abandon part of his case and the suit was in

consequence dismissed as against such Defendant, he is a Defendant against whom a suit has been dismissed within the meaning of the explanation

to Section 47, Code of Civil procedure. The case which came before the Court in Krishnappa v. Periyaswamy ILR (1917) Mad. 964, of a

misjoinder of causes of action and of the Plaintiff being required to proceed with one cause of action only and the suit being dismissed as against

the Defendants who had been joined in respect of the other cause of action only, may possibly stand on a different footing, as to hold that the

cause of action which the Court was prohibited from trying may be gone into in execution by virtue of Section 47, goes far to defeat the prohibition

of joinder, and such a construction of Section 47 should therefore be avoided if it is possible to do so. As that question is not before us, I express

no opinion upon it, and will only say that the proper course in these cases appears to be for the Court to exercise the power, which it now has

under Order I, Rule 10 (2), of ordering at any stage of the proceedings, the name of a Defendant improperly joined to be struck out, instead of

dismissing the suit as against him. That will, as held by the, Full Bench in Ramaswami Sastrulu v. Kameswaramma ILR (1900) Mad. 361 (F.B.),

have the effect of taking him out of the operation of Section 47 which ought not to apply to him seeing that he has no real concern with the suit. I

would answer the first question in the affirmative.

As regards the second question, u/s 4 of the Madras Hereditary Village Offices Act, III of 1895, the word ''emoluments'' includes ''lands and

assignments of revenue payable in respect of such lands,'' and according to the finding the emoluments in this case included both the lands and an

assignment of revenue arising out of them. u/s 5 these emoluments are ''not liable to be transferred or encumbered in any manner whatsoever,''

reproducing in substance the provisions of Regulation VI of 1831 which made such alienations null and void. Section 17 of the Madras Proprietary

Estates Village Service Act, II of 1894, provides that:

if the remuneration of a village office consists in whole or in part of lands, or assignments of revenue payable in respect of lands, granted or

continued in respect of or annexed to such village office by the State, the Government may enfranchise the said lands from the condition of service

by the imposition of quit-rent, and such enfranchisement shall take effect from such date as Government may notify.

Government in this case issued an inam title-deed which recited that the inam consisted of an assignment of land revenue and commuted its right

to resume the assignment in consideration of payment to Government of a quit-rent in addition to the existing jodi payable to the proprietor. It said

nothing about the enfranchisement of the inam or the lands from the condition of service and they remained liable as before, and continued to form

the emoluments of the village office until the issue of the notification which was after the date of the alienation now in question. The lands therefore

continued subject to the prohibition against the incumbrance in any manner whatsoever, and the alienation in question was undoubtedly void at the

time it was made. As pointed out in the Order of Reference, there is a conflict of decisions in this Court as to whether the subsequent

enfranchisement has the effect of validating such alienations. In 1907 it was held by White C.J. and Miller, J. in L. Angannayya and Others Vs.

Daroor Narasanna and Others, , that, though the transfer was null and void under Regulation VI of 1831, yet after enfranchisement the transferee

was entitled u/s 43 of the Transfer of Property Act to require that the transfer should operate on the alienable interest subsequently acquired by the

transferor. No authority was cited, and the original illegality of the transfer was not referred to. On the other hand, in Narahari Sahu and Another

Vs. Sira Korithan Naidu and Others, it was held on similar facts by Sundara Ayyar and Benson, JJ. that Section 43 has no application to cases

where the transfer is forbidden by law on grounds of public policy, referring to Ramasami Naik v. Ramasami Chetti ILR (1907) Mad. 255. This

case was approved and followed in Batchu Ramayya v. Dara Satchi (1913) 14 M.L.T. 430 and Karri Ramayya v. Villoori Jagannadhan (1915)

18 M.L.T. 360. The decision in Ramasami Naik v. Ramasami Chetti I.L.R (1907). Mad. 255, on which reliance was placed, has since been

followed in Sri Kakarlapudi Lakshminarayana Jagannada Raju Garu and Others Vs. Sri Rajah Kandukuri Veera Sarabha Varah Lakshmi

Narasimha Venkata Jogi Balasurya Prasada Row Garu and Another, . We have not been referred to any English decisions pointing the other way,

and on the whole I think the sound position for us to proceed on is that no equities arise out of a transaction which is prohibited by law on grounds

of public policy. The present case no doubt differs from the earlier cases because the transfer by way of mortgage purported to be of enfranchised

mirasi and inam lands'' and was made after execution of the inam deed by which a quit-rent was imposed on the lands, a step which was intended

to be followed, and was followed at an early date, by a publication of the notification enfranchising the lands. The transfer was none the lees illegal

when it was made, and on the whole I do not think there are sufficient reasons for departing from what I understand to be the general rule

especially in the absence of English authority in point. In Bettesworth v. Dean of St. Paul''s (1728) 1. P.C. 240, which is referred to by Lord

Macnaghten in Tailby v. The Official Receiver (1888) 13 A.C. 523 where a covenant in a lease to renew for ninety-nine years which was lawful

when made was rendered. illegal by subsequent statutes, it was held by the House of Lords, that, as the statutes permitted leases for forty years,

specific performance by executing a fresh lease for forty years might be decreed, but in that case the original agreement was lawful, and it does not

cover the present case where the transaction was illegal at the time it was entered into. As regards the second question my answer is that the

transfer was clearly illegal and inoperative when it was made and did not become operative on the subsequent enfranchisement of the lands.