Walter Sales Schwabe, Kt. C.J.
1. In this case an inam was granted by a Zamindar to the ancestor of the petitioner on terms that he should do Swastivachakam service in a temple and he and his family should enjoy the inam so long as they did this service. In 1860 the Inam Commissioner confirmed the grant 'to be continued so long as the service was performed'. This appears from the extract from the Inam Register produced before us. The total area of the land comprised was about ten acres, the produce or revenue from which would be not more than sufficient to provide a living for the inamdar for the time being.
2. A judgment having been obtained by the respondent against the present inamdar, he applied to attach the land comprised in the inam in execution and he desires the Court to sell it to satisfy the judgment debt. On behalf of the inamdar it is contended that so long as the services are rendered the land is not saleable in execution. Now, it is clear law that the Court can only sell in execution property which the judgment-debtor can lawfully alienate, and the question to be decided is whether an inamdar can sell the property. It is argued on his behalf that it cannot be attached under Section 60 of the Civil Procedure Code and is inalienable under Section 6 of the Transfer of Property Act. Section 60 of the Civil Procedure Code forbids the attachment of a right of personal service. In my judgment, what is sought to be attached in this case is the land, and not the right of personal service, and therefore that section has no application. Section 6, Sub-clause (d) of the Transfer of Property Act includes among the properties that cannot be transferred ' an interest in property restricted in its enjoyment to the owner personally.' It is certainly arguable that this property is restricted in its enjoyment to the owner personally, 'owner' meaning the inamdar for the time being. Although I think that is arguable, and it may be that this inam is covered by these words, I prefer to base my decision on another subsection of the same section. Sub-section (f) provides that 'a public office cannot be transferred nor can the salary of a public officer.' I do not think that this sub-section applies. Sub-section (h) provides that '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 consideration within the meaning of Section 23 of the Indian Contract Act, 1872. That is what appears to the court to be contrary to public policy. The latter portion has been incorporated in this sub-section by a later Statute. In my Judgment, the sale of such property is opposed to the nature of the interest affected and also is contrary to public policy. The right -to enjoy the property is as long as the inamdar renders services in the performance of which the public have an interest. 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 has to render, that he should sell it or alienate it, leaving himself without the means of subsistance and without further interest in the place or in the performance of the services. It is also to be observed that, if the property were sold, the purchaser would get no title of any value, for at any moment the property might revert to the Zamindar or the Government, as the case may be, when the inamdar ceases to render such services. Further under Standing Order 54(1) of the Standing Orders of the Board of Revenue the Government can resume possesesion of a charitable or religious inam immediately on alienation.
3. The view that I am taking is supported by authority, In Pakkiam Pilial v. Seetharama Vadhyar (1903) 14 M.L.J. 134 Benson and Bhashyam Ayyangar, JJ., held that any alienation of land which is held by a person as an emolument attached to a spiritual office in a village is void against the rightful holder. In Govinda Goundar v. Ramien (1914) 25 I.C. 600 which was heard by Sir John Wallis. C. J. and Seshagiri Aiyar, J. it was held that a service inam is land which the owner is incompetent to alienate within the meaning of Sections 31(2) and 32(1) of the Land Acquisition Act. It is true that a another statute was in question but the principle underlying, that case seems to be the same as in this. In Venkataranga Charlu v. Krishnama Charlu (1911) (2) M.W.N. 473 a case of a sale in execution, Abdur Rahim and Ayling, JJ. held that an inamdar of land for services similar to this cannot alienate it. We sent for the record of that case and found that the point had been raised and decided before the District Munsif and the District Judge. The point was also one of the grounds of appeal when the case came up before the High Court, and it must be taken, on those facts, that the point was considered and decided by the Court that heard the appeal. It is to be observed that one of the learned Judges in that case is the Judge who in this case takes the opposite view; presumably his attention was not called to his previous decision in Venkatarangacharlu v. Krishnamacharlu (1911) 12 I.C. 710. In Rajah Nilmonee Singh Deo v. Kashe Mahtoon (1875) 25 W.R. 206 it was held by Mitter, J. that a service tenure can be sold in execution of a decree for the arrears of its own rent provided that the service due from the holder be of a private kind, and personal to the plaintiff, but not where the service is of a public kind as in the case of a police jagheer. That lays down a proposition that land burdened with the performance of a service of a public nature is inalienable. In my Judgment, this land was burdened with the performance of a service which is of a public nature.
4. In Vusa Chandrakantan v. Vusa Subbarayadu ( ) 16 M.L.T. 347, it was held that an inamdar can alienate for his life-time and in The Midnapore Zemindari Company v. Appayasami Naicker 34 M.L.J. 563 it was held by Sir John Wallis, C. J. and Spencer, J. that a palayam, which is the holding of land for military services, was inalienable by the Common Law beyond the lifetime of the holder and while he rendered service.
5. Now the question whether or not the inamadar could alienate this land during his lifetime while he rendered service does not really arise directly here, because the present application is for sale of the land out and out; but, as the execution creditor would have a right, if such land is alienable for such period, to sell for that period if he could do so, I think it right that i should express my view on that subject. Those cases may be distinguishable The Midnapore Zemindary Co. v. Appayasami Naicker 34 M.L.J. 563 on the ground that it was a different kind of inam (Vusa Chandra kantan v. Vusa Subbarayudu ( ) 16 M.L.T. 347) on the gound that it means, that the inamdar can let the property during the time that he is rendering the services. If that is the meaning I should find nothing objectionable in those decisions for I can see nothing contrary to the innterest 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 someone else, he provides for himself what it was intended he should have, namely, a subsistence out of the land. This he would get in the shape of rent which answers the purpose just as well as obtaining profits from the actual cultivation of the land. But, if those cases mean that he can sell out and out for the period of time during which he lives and renders services, I do not agree with them, because such an alienation would in my view, be quite contrary to public policy and for the same reasons as I have already given.
6. We were referred to a case in Lotlikar v. Wa'gle I.L.R. 6. Bom. 596. This case was relied on by Abdur Rahim, J. in the Court below in this case as an authority in favour of the view that he took that such land as is comprised in this inam could be alienated. Now that case was heard before the Subordinate Judge and Assistant Sessions Judge before the passing of the Transfer of Property Act, 1882, and it is to be observed that the Transfer of Property Act was not made applicable to Bombay until 1893 and therefore when the case came up before the High Court, still the Transfer of Property Act did not apply. That case turned on the interpretation of the Bombay Act II of 1863, and we need not here consider whether the Court there took the right or the wrong view, but it is an error to think that in that case it was held that under the Transfer of Property Act the interest of an inamdar to be enjoyed during his life-time while he renders services can be attached in execution and sold, or that that case is an authority for the proposition advanced on behalf of the creditor in this case, The points raised in this case were not, and indeed could not be argued in that case.
7. It follows that in my judgment this appeal must be allowed with costs throughout.
Coutts Trotter, J.
8. I am of the same opinion and I think that the result that my Lord has come to is consistent with the current of decisions in this Court. There are no doubt decisions of this Court which say that an Inamdar of this character can alienate by way of lease his inam property for a period, I believe in one decision to which I was a party Kupparaju Venkatasubbiah v. Murughula Sheik Sitar Saheb 19 M.L.T. 144 it is said--to the extent of his life-time. Of course, then it would be limited to the period during which he is willing to perform the services in respect of which he enjoys the inam; but I should like to point out that although it may be that he is entitled to grant a leasehold of the property during the period of his enjoyment, it by no means follows that it would not be contrary to public policy that the right he has to create such a leasehold estate should be sold under the orders of court because then the result might be attained that the inamdar would have left upon his hands the burden of the service without continuing to enjoy the revenue of the property which was provided to keep him in sufficient comfort to be able to perform the services for which it was granted. 1 agree that the appeal must be allowed with costs throughout,
Kumaraswami Sastri, J .
9. I agree.