Grant of property with restriction against alienation.

JUDGMENT.- In execution of a Small Cause decree obtained against the second defendant, the suit property was brought to sale by the decree-holder and purchased by him, from whom the plaintiff has purchased. The property had been granted to the second defendant as a Darkhast grant. The grant contained a provision restraining alienation of the property in favour of persons who are not Adi-Dravidas. The plaintiff on the strength of the sale in his favour and possession with him, asked for a declaration of his title to the property and for an injunction restraining the defendants, the first defendant being a usufructuary mortgagee from the second defendant, from interference. The plaintiff has succeeded in both the Courts below. Hence this appeal by the defendants.

One of the points which appears to have been argued before the trial Court was that in view of the fact that the property was granted to the second defendant under the provisions of the Crown (now Government) Grants Act and of the restraint against alienation in the manner I mentioned, the attachment and sale of the property were against public policy and were null and void. This point did not find favour with the trial Court, apparently on the view that the objection was not raised at the stage of the execution sale or attachment. The judgment of the lower appellate Court is silent on the point. It is not clear whether the point was argued before it.

I have, however, heard Sri Mohan on that point. He urges that the property was inalienable in view of the restraint in the grant and that any alienation would be contrary to public policy and would therefore be void. That being the case, he contends, though no protest was raised at the stage of the execution sale, the point is open to the second defendant in the suit. Counsel reinforces his argument by reference to Lakshmadu v. Ramudu1 ; Ramakrishnamma v. Venkatasubbiah2 and Mohan Ram v. Sundararamier3. It seems to me none of these cases is of any assistance to the appellants. Lakshmadu v. Ramudu1 related to a dasabandham inam, the alienation of which was held to be against public policy, and therefore a Court sale of such an inam would be a nullity. The question, whether if the persons entitled to object to a sale had failed to raise it at the execution stages, they could be permitted to raise it in a subsequent proceeding to challenge the same, was not raised or decided in that case. No doubt, in the second case there was a reference to such a point. But the point was actually decided by the lower appellate Court and was not raised in this Court, so that no decision was given on that. Mohan Ram v. Sundararamier1 had not decided that point, though there are certain observations of my learned brother, Ananthanarayanan, J., at page 39, pointing to the fact that the objection could not be permitted to be raised at a latter stage.

But the point is that the property in question is not an inam at all. It was granted, as I said, by the Government under the provisions of the Crown (Government) Grants Act. Though the grant was subject to prohibition against alienation in a particular manner, the grant certainly vested the ownership of the property in the grantee. The restraint against alienation merely applied to a transaction between parties and not to a sale in invitum. In any case, a Court-sale contrary to the prohibition against alienation cannot be said to be opposed to public policy.

Both on the ground that the restriction as to alienation will not prevail against a Court-sale and on the ground that the objection had not been raised at the stage of execution, I hold that the sale cannot be assailed as invalid, or not binding on the second defendant.

The Second Appeal fails and is dismissed with costs. No leave.

R.M. ------------- Appeal dismissed.

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