Questioning the direction for sale of inalienable land in the execution proceeding.

This appeal is against the order made by the learned District Judge of Madurai, in E.A. No. 132 of 1957, in E.P. No. 12 of 1956, in O.S. No. 21 of 1950.

The disputed property is 2 cents of land in the heart of Madurai town and forming part of T. S. No. 1522. It is Devadhyam land granted for the Kalanji Service (supply of betel, etc., in a silver or gold cup during Palliyarai Pooja and Navarathri) in Sri Meenakshi Sundareswarar Temple. It is common ground that a valuable building has been constructed upon it.

These two cents of land came into the possession of G.G. Kuppuswami Ayyar under several alienations with which we are not concerned here. This G. G. Kuppu-swami Ayyar mortgaged this property to the Vasantha Chit Fund, the original decree-holder. This mortgage was the subject-matter of the suit O.S. No. 21 of 1950. This suit resulted in a decree. The hypotheca was brought to sale. It was put up in auction in E.P. No. 12 of 1956 on 28th January, 1957 and the property was purchased by T. S. Krishnan for Rs. 13,410/. The sale was confirmed after overruling the objections raised by Kuppuswami Ayyar and his son and the present appeal is by the son against that order.

Delivery of possession has not yet taken place.

The contraversy before me is an interesting one and raises an important question of law.

That the property in question is Devadhyam land and service Inam granted for the purpose of a particular service in Sri Meenakshi Sundareswarar Temple at Madurai, can be assumed as established. It is now well-settled that lands forming the emoluments of offices of a public nature cannot be alienated by the holder by way of sale, gift or mortgage or sold in execution of a decree against him. This has been recognised as a rule of general law based upon public policy in connection with Inams granted for service in the following cases: Lakshmanaswamy Naidu v. Rangamma1 ; Anjaneyulu v. Sri Venugopal Rice Mills Ltd., Tenali2, Sundararaja Dikshitulu v. Seshadri Dikshitulu3, Ramanathan Chettiar v. Kalidasa Kavundan4 ; Adinarayana Chetty v. Chengiah5 ; Ramakrishnamma v. Venkatasubbiah6, Lakshmadu v. Ramudu7, and Kottayya v. Subbrayudu8 . The principle is that if there is dissociation of the office from the emoluments attached thereto, such dissociation impairs the efficiency of the service to be rendered. There fore, it is held that it is contrary to public policy and such alienations are void.

It is well-known, however, that many of these service inam holders alienate these properties without reference to their obligations and do not set up the inalienability for reasons of their own during the course of the trial or before the confirmation of the sale. In other words, the alienor and the alienee for ulterior objects of their own and to the detriment of the trust, might be discreetly silent regarding the inalienability of the property in question, so that the Court might proceed to grant the decree.

Then this interesting question arises. What happens if the inalienability is set up in the executing Court after the decree has been passed ? Is that Court competent to go into that question in order to come to the conclusion that it cannot execute the decree or would it be a case of that Court being prevented from doing so by the equally well-settled principle that the executing Court cannot question the decree which it is asked to execute.

In Venkataseshayya v. Virayya9, Viswanatha Sastri, J., in his order of reference to the Full Bench reviewed all the Madras cases and came to the conclusion:

“ I humbly venture to think that where the alienation of service inam lands is prohibited on grounds of public policy, either under the general law or by statute, the position is the same and in either case it is the duty of the executing Court on being satisfied that the lands are service inams and therefore not saleable, to stay its hand. I find it difficult to accept the view that the want of jurisdiction of the Court to direct a sale of the la