Charles Sargent, Kt., C.J.
1. The plaintiff in this case sued to have his right established to attach a piece of land in execution of his decree against one Dodapa Yana Timaya, who held the land under a mulgeni lease from the defendant. The defendant objected to the attachment on the strength of a particular provision in the lease in question, which after forbidding alienation by the tenant by mortgage, sale, or lease, continues thus: 'You are not to let it be sold, or attached and sold in satisfaction of judgment debts if you do let it, I shall take away the land, and give it to others for cultivation.' The Judge held that this clause was void as being in restraint of alienation, which he held to be a necessary incident to a mulgeni estate, but that in any case 'the creditor was not bound by it, nor the Court restrained from issuing process of attachment at his instance, and, lastly that an assignment by operation of law, and not by the voluntary and immediate act of the parties, was not a breach of such covenant.' Mr. Tagore has not given any authority for his opinion that alienation is a necessary incident to a mulgeni tenure. The authorities we have had access to point, we think, to a different conclusion.
2. In the minute of the Revenue Board (see p. 28 of a book, Exhibit A, in the suit of Vyakunta Bapuji v. The Government of Bombay 12 Bom. H.C. L better known as the Kanara Case) it is said: 'The exclusive rights to the hereditary possession, and usufruct of the soil is in Kanara termed varga, meaning separate independent property in the land, and seems originally, as in Malabar, to have been vested in the military tribe of the Nayrs, the first and, at one time, the exclusive mulis or landlords of that province, for except to unclaimed waste, and to estates escheated from want of heirs, it does not appear that the Government in Kanara at any time possessed, or even pretended to, the smallest right to property in the land. The Nayrs had under them a number of inferior rayats, called genis or tenants, to whom they rented out the portions of their lands which they did not cultivate by means of hired labourers or slaves, the genis or tenants were of two distinct classes--the mulgenis, or permanent, tenants, and the chali genis, or temporary tenants. The mulgenis, or permanent tenants of Kanara, were a class of people unknown to Malabar, who on condition of the payment of a specified invariable rent to the muli, or landlord, and his successors, obtained from him a perpetual grant of a certain portion of land to be held by them and their heirs for ever. This right could not be sold by the mulgeni or his heirs, but it might be mortgaged by them, and so long as the stipulated rent continued to be duly paid, he and his descendants inherited this land like any other part of their here ditary property. This class of people, there fore, may be considered rather as subordinate landlords than as tenants of the soil, more especially as though many of them cultivated their lands by means of hired labourers or slaves, others sub-rented them to the chali genis or temporary tenants.'
3. Sir T. Munro, in his report on the condition and assessment of Kanara written in 1800 Life of Sir T. Munro by Sir A.J. Arbruth not, vol. I, p. 70, describing how the land was held in the fourteenth century, so far as could be gathered from tradition and account, says that' the land was amongst a prodigious number of them parcelled out, landlords paying a fixed rent to the Sarkar' (alluding, doubtless, to the mulis mentioned in the preceding minute of the Revenue Board), and after saying that alienation of the land by sale or other wise was unrestrained, he proceeds to say that 'these proprietors had under them an infinite number of lesser proprietors holding their lands of them with all the same proprietary rights as those under which they held their own of Government. It was usual for the original proprietors to rent, either for a term of years or for ever, such a portion of their lands as was sufficient to discharge the whole of their public rent, and to keep the rest in their hands. The tenants for ever became a second class of proprietors whom nothing could deprive of their right of possession unless their own act of gift or sale.'
4. The differences between these two accounts as regards the power of alienation by the mulgeni may be explained by the long period which had elapsed between the establishment of the state of things in the fourteenth century, referred to by Sir T. Munro, and the existing state of things in the beginning of this century as described in the minute of the Revenue Board. This distinction is referred to in Chamier's Land Assessment and Tenures of Kanara, published at Mangalore in 1853. After stating that, 'subject to the condition of paying annually a specified rent, they are at liberty to sub-rent, mortgage, or sell their interest in the land, and are rather a description of subordinate landlords than tenants,' the author proceeds to say: 'In granting land upon mulgeni tenure many conditions are now often imposed which are never found in ancient deeds--such, for example, as that the right shall not be alienable.'
5. These authorities show clearly that the mulgenis were only tenants, although tenants in perpetuity, holding under their superior landlords, the mulgars, whose estate, like that of tenants in fee simple in England, would appear to have been the highest estates in the land known to the law in Kanara and further that although originally mulgeni tenants were not restricted by the terms of their leases from alienation, the practice had grown up--how soon it does not appear, but at any rate by the beginning of the present century--of leasing the land in perpetuity at a fixed rent coupled with such and other restrictions.
6. Lastly, it is not suggested that the law has either by Statute or judicial decision defined the mulgeni tenure.
7. Under these circumstances it would be impossible, we think, to hold that restriction against alienation is so repugnant to the mulgeni tenure in the contemplation of law, that a clause to that effect must be held to be void. But it was said that such a clause in a permanent lease makes the land for ever inalienable, and is, there fore void on the ground of public policy. That view, however, would not appear to have been taken by the framers of the Transfer of Property Act, for we find that by Section 105 it, recognizes leases in perpetuity, and that Section 10, which forbids a clause against alienation in general, makes an exception in the case of leases where it is introduced for the benefit of the lessor. As this Act determines the law in two of the presidencies, and may any day become the law in this Presidency, it would be, to say the least, highly inconvenient to regard the question as to the policy of the law as other wise than settled. However, it was said that in the present case the Court ought to infer that the clause was inserted with the intention to benefit the lessee, because it says: 'As our family has obtained a right over it only as a means of subsistence for our family, we or our descendants have no right on the ground of this tenancy to mortgage, sell, lease, & c.' It appears that the property had been originally sold by the tenant to defendant's father in satisfaction of judgment' debt, and this clause shows clearly that the defendant's object was, whilst providing a subsistence for his debtor by the cultivation of the land, to retain full control over the property.
8. We have hither to discussed the question as to alienation in the only sense in which the Judge would seem to have understood the language of the lease, viz, as restrictive of alienation by act of the lessee. In the present case, however, there has been no alienation on his part, and if the defendant is entitled to re-enter, it must be in virtue of the words of the clause which forbid 'the lessee letting it be sold, or attached and sold in satisfaction of judgment debts' for other wise, as appears from the cases, referred to in argument, of Doe d. Mitchinson v. Carter 8 T.R. 57 and Croft v. Lumley 6 H.L.C. 672 there would be no breach committed by the attachment of the property. It was contended, however, in argument that a clause to the above effect should be treated as void as against creditors, and ought not to prevent the Court from issuing its process in execution. By English law a clause in a lease is valid which gives a right of re entry by the landlord in case the term be taken in execution, or in the event of the lessee becoming insolvent, or judgment being entered up, or fieri facias being sued out against him (see the cases cited in the note at p. 177, Davidsons Conveyancing, Vol. V), and we may also remark that the above rule, as regards the insolvency of the lessee, is expressly adopted by the concluding words of Section 12 of the Transfer of Property Act. To hold, there fore, that the clause in question, which is ejusdem generis with a clause which prevents the lease from passing to the creditors of an insolvent, is not valid as against creditors, would, in our opinion, be to draw a distinction in form and not in substance. Now the words 'not to let the lands be attached and sold in satisfaction of judgment debts' point, we think, as well to a passive attitude as to active assistance on the part of the lessee, whilst the process of execution is going on, and in this respect the present case is essentially different from those above cited., We think, there fore, that if the lessee allowed the land to be attached 'and sold by not taking measures to satisfy his judgment debt, there would be a breach, both, according to the letter and spirit of the proviso in the lease.
9. In the present case it is true that there would not, strictly speaking, be a breach of the clause and a right of re-entry until the land was both attached and sold, but as the attachment by itself can be of no use to the creditor, the debtor being already by his lease prevented from alienating, and as it would-be necessary, even if the attachment were allowed, to forbid the sale by a concurrent order, the attachment, which under these circumstances would be futile, should not, we think, be permitted,
10. The decrees of both the Courts below must, there fore, be reversed, and the plaintiff's claim to attach the land dismissed, with costs on plaintiff throughout.