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Maharajah of Vizianagram Being Minor, by Collector and Guardian H.F.A. Gilman, Esq. Vs. Chelliah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1904)14MLJ468
AppellantMaharajah of Vizianagram Being Minor, by Collector and Guardian H.F.A. Gilman, Esq.
RespondentChelliah
Cases Referred and Narayan Khandu Kulkarna v. Kalgauda Birdar Patel I.L.R.
Excerpt:
- - these cases are clearly distinguishable from the present......this section, the lower appellate court refused to cause the sale to be held notwithstanding the direction for sale contained in the decree.2. on behalf of the appellant, it is contended that, as between the parties to the decree, the order for sale therein contained must be carried out, notwithstanding the prohibition of law relied on by the lower appellate court. if the interdiction upon alienation by-parties or attachment or sale by court were merely for the benefit of particular persons, it would, no doubt, be open to them to waive the benefit introduced in their favour and, on such waiver, the transfer could be given effect to and a sale, necessary for that pur-pose, might take place. again, even where enactments prohibiting transfers have had wider objects, such transfers have.....
Judgment:

1. The appellant, the Maharajah of Vizianagaram, obtained a decree ex parte against the respondent on a mortgage and it contained an order for the sale of the mortgaged land. Though the record prior to and inclusive of, the decree makes no allusion to the fact, yet, in the subsequent proceedings, the land is admitted to be service inam being the emoluments attached to the office of village carpenter, which is among the offices comprised in the Madras Hereditary Village Offices Act (Act III of 1895). Section 5 of that Act runs thus, 'The emoluments of village ' officers, whether such offices be or be not hereditary and, in the ' scheduled districts as defined in the Scheduled Districts Act ' 1874, all such emoluments and other emoluments granted or con-' tinued in remuneration for the performance of duties connected ' with the collection of the revenue or the maintenance of order ' shall not be liable to be transferred or encumbered in any man-' ner whatsoever and it shall not be lawful for any Court to attach ' or sell such emoluments or any portion thereof.' With reference to this section, the lower appellate Court refused to cause the sale to be held notwithstanding the direction for sale contained in the decree.

2. On behalf of the appellant, it is contended that, as between the parties to the decree, the order for sale therein contained must be carried out, notwithstanding the prohibition of law relied on by the lower appellate Court. If the interdiction upon alienation by-parties or attachment or sale by court were merely for the benefit of particular persons, it would, no doubt, be open to them to waive the benefit introduced in their favour and, on such waiver, the transfer could be given effect to and a sale, necessary for that pur-pose, might take place. Again, even where enactments prohibiting transfers have had wider objects, such transfers have been held binding upon the actual individuals making the transfer, on the principle of a personal estoppel by reason of a personal interest possessed by those individuals. But where the prohibition has some object of public policy in view, the rule is to enforce the prohibition literally and strictly (compare Hardcastle on Interpretation of Statutes, 3rd Edition, pages 392 and 397).

3. There can be no doubt that Section 5 referred to, has been framed on considerations of such a policy and in order to guard against the dissociation from the specified offices, to any extent whatever, of the emoluments attached thereto, as that cannot but impair the efficiency of the services to be rendered by the officers and conse-quently affect injuriously the interests alike of the Government and of the Sections of the public concerned.

4. In these circumstances the prohibition, in question, must be taken to be absolute and to deprive Civil Courts of all jurisdiction to give a direction for sale of such main property as that in question. And the decree, in so far as the direction for sale goes, was altogether ultra vires and incompetent to confer the right intended, (See e. g., Vasenji Haribhai v. Lallu Akhu I.L.R., 9 B., p. 285) and Courts are bound, on the matter coming to their notice, to abstain from enforcing their direction.

5. As to the cases of Sadashiv Lahit v. Jayanti Bai I.L.R., 8 B., p. 185 and Narayan Khandu Kulkarna v. Kalgauda Birdar Patel I.L.R., 14 B. 404 cited for the appellant--the former of which was the case of a right to officiate at religious ceremonies in a certain village and the latter a case of Kulkarni vatan land--both, apparently, fall under the second of the heads stated above, i. e., cases of estoppel on the ground of personal interest of the individual transferors. The provisions of Section 5 of the Bombay Hereditary Offices Act, (Act III of 1861) bearing on the question of a vatandar's power to alienate vatan land, which was under consideration in the second of the above cases differ indeed essentially from the provisions of Section 5 of the Madras Act, for, they imply that a vatandar has unrestricted power of transfer of vatan lands, when the transferee is a vatandar of the same vatan and, in other cases, that he could transfer, with the sanction of the Government. And Sargent, C.J. and Telang, J., naturally enough, doubted whether provisions of the qualified character of Section 5 of the Bombay Act should be construed as making an alienation to a person outside the family, void as between the grantor and the grantee. These cases are clearly distinguishable from the present.

6. The appeal fails and is dismissed with costs.


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