[This appeal came on for hearing on the 10th and 13th days of August 1917, before their Lordships Abdur Rahim and Bakewell, JJ.]

Abdur Rahim, J.

The lands to which the dispute relates appertain to a village service inam and are situate in a proprietary estate. The authorities having decided to enfranchise the inam, the inam title-deed was granted on 18th August 1906 but the notification spoken of in Sect. 17 of Madras Act II of 1894, fixed 1st April 1911 as the date from which the enfranchisement would take effect. Between these two dates, i.e. , on 23rd January 1909, these lands described by the mortgagors as the enfranchised mirasi and inam lands belonging to us were mortgaged to the appellant who subsequently in 1915 obtained an ordinary mortgage decree. The first respondent also had a mortgage on the same property and sued to enforce it making the appellant a party; but being advised that a mortgage of service inam lands was unenforceable, he gave up his claim on the mortgage and obtained a simple money decree against mortgagors, his sui t being dismissed as against the appellant. The first respondents decree was in 1914, i.e. , before the decree of the appellant. The properties being attached in execution of the former money decree, the latter asked by a petition in the execution proceedings that the lands may be sold subject to his mortgage decree. That petition has been rejected and the appeal is against that order.

The Respondent has taken the preliminary objection that no appeal lies, contending that although the appellant was impleaded as a party to the suit and his name is borne on the decree, he is not a party to the suit in which the decree was passed within the meaning of Sect. 47 of the Code of Civil Procedure inasmuch as he ceased to be a proper party when the respondent gave up his claims on the mortgage. This proposition is laid down by Ayling and Kumaraswami Sastri, JJ., in Kristnappa Mudaly v. Periaswami Mudaly (5 L.W. 369), But Sadasiva Aiyar and Phillips, JJ., held otherwise in an unreported case (Second Appeal No. 888 of 1916). It seems to me with all respect that in the former decision sufficient effect has not been given to the plain language of the section which is made still clearer by the explanation attached to it. The explanation says: For the purposes of this section, a defendant against whom a suit has been dismissed is a party to the suit. Nor can it be said that it is the duty of a Court charged with execution of a decree to see that a defendant against whom the suit has been dismissed was properly made a party or not. Having in view however the conflict of views expressed in Kristnappa Mudaly v. Peria-swami Mudaly (5 L.W. 369) and Second Appeal No. 888 of 1916, the question should be solved by a Full Bench.

Upon the merits, Sect. 43 of the Transfer of Property Act has been invoked to validate the mortgage in favour of the appellant, But it has been ruled by this Court that that section has no application to alienations which are prohibited by law on the grounds of public policy. The matter is fully discussed by the learned Chief Justice in Sri Kaknrlapudi Lakshminarayana Jagannada v. Sri Rajah Kandukuri Balasurya Prasada Row (28 M.L.J., 650), with which I respectfully agree. The same view of the law is expressed in Narahari Sahu v. Korithan Naidu (24 M.L.J., 462), Batchu Ramayya v. Dhara Satchi (14 M.L.T., 430), Karri Ramayya v. Villoori Jagannadhan (18 M.L.T., 360), while a different view prevailed in Angannayya v. Narasanna (18 M.L.J., 247). The decision in the last case is in direct conflict with the other decisions, all relating to alienations of service inam lands. And in my opinion the present case cannot be effectively distinguished from these by reason of the fact that on the date of the appellants mortgage the inam title had been issued though the notification was not issued till long afterwards When Sect. 17 of Madras Act II of 1894 expressly says that the enfranchisement shall take effect only from the date of the notification, it seems to me that before that date the legal incidents attaching to the property including its inalienability remained unaltered. It could not be said that by issuing the title-deed the Government bound itself by way of contract to issue the notification, though the notification was certain to issue in ordinary course and in the latter sense it would be right to say that this expectation of the inam holder was not a mere possibility. If the mortgagee could not rely on any contract in favour of the mortgagor, I find it still more difficult to say that the inam title-deed by itself created some sort of inchoate interest in the property free from all restraint of alienation, although the Act says that the enfranchisement shall have no effect except from the date of notification. But as there is a conflict of decisions on the applicability of Sect. 43 to Village Service Inams, I think this question also should be referred to the Full Bench.

I would therefore refer the following questions to a Full Bench for opinion:

(1) Is a person who was impleaded as a defendant in a suit and against whom the suit is dismissed by the decree, a party to the suit in which the decree was passed within the meaning of Sect. 47 of the Code of Civil Procedure, if the dismissal of the suit against him was due to the fact that at the trial the plaintiff abandoned that part of his claim by reason of which the defendant would be a proper party to the suit;

(2) Is a mortgage of village service inam lands in a proprietary estate executed after the grant of the title-deed of enfranchisement but before the date of the notification contemplated under Sect. 17 of the Madras Act II of 1894 valid and operative

Bakewell, J. - By Sect. 17 of the Madras Proprietary Estates Village Service Act, 1894, the Government was empowered to enfranchise lands granted as remuneration of a village office from the condition of service, but such enfranchisement was declared to take effect on or after the date fixed in the notification issued under Sect. 19 for the levy of a village service cess. That is to say, the Government might perform the Act constituting an enfranchisement but its operation was suspended until provision had been made for the remuneration of the services on which the land had been previously held. The holder of the office therefore retained the land on the former tenure until such provision had been made, but he acquired a further interest in the land which on the occurrence of the prescribed event would ripen into an absolute interest. In my opinion such an interest is assignable, and is not a mere possibility of a like nature with a chance of an heir apparent succeeding to an estate or the chance of a relation obtaining a legacy on the death of a kinsman within the meaning of Sect. 6 of the Transfer of Property Act, 1882, since it would become an absolute interest in the ordinary course of business.

In the present case the holder of the lands, after the execution of a deed of enfranchisement but before a notification had been issued by Government for the levy of cess, purported to transfer by way of mortgage enfranchised mirasi and inam lands held on service tenure, and I think that this was a transfer of inchoate interest which I have described. The transfer could not operate to convey the subsisting interest in the lands in so far as it consisted of a service tenure (Madras Act III of 1895, Sect. 5), but on the issue of the notification that interest became extinguished and the interest which passed under the mortgage became absolute, without any further act of the parties. The petitioner had therefore a valid security and was entitled to apply to the Court that an attachment of the lands should be declared subject thereto.

The decree under which the attachment was issued contains the name of the petitioner as party defendant, and recites the plaintiffs claim as being for a sum due on a mortgage and the decretal portion directs that the suit be dismissed as against the petitioner. The petitioner was a proper party to the suit as framed and the form of the decree was due to the relinquishment by the plaintiff of his claim under his mortgage and his acceptance of a simple money decree. The case in my opinion falls precisely within the explanation to Sect. 47 of the Code of Civil Procedure and the petitioner was a party to the suit and this appeal accordingly lies.

Having regard to the differences of opinion mentioned by my learned brother, I agree that the questions framed by him should be referred to a Full Bench.

[This appeal came on for hearing as per the above order of Reference on the 14th November 1917, before the Full Bench as constituted above.]

John Wallis, J.

[1] I am clearly of opinion that, when a party has been properly impleaded as one of the defendants in a case and the case as against him would have proceeded to judgment but for the fact that the plaintiff elected to abandon part of his case and the suit was in consequence dismissed as against this defendant, he is "a defendant, against whom a suit has been dismissed," within the meaning of the explanation to Section 47, Civil Procedure Code. The case which came before the Court in Krishnappa Mudali v. Periasami Mudali , of a misjoinder of causes of action and of the plaintiff being required to proceed with one cause of action, only and the suit being dismissed as against the defendants who had been joined in respect of the other cause of action only, may possibly stand on a different footing, as to hold that the cause of action which the Court was prohibited from trying may be gone into in execution by virtue of Section 47 goes far to defeat the prohibition of joinder, and such a construction of S., 47 should therefore be avoided if it is possible to do so. As that question is not before us, I express no opinion upon it, and will only say that the proper course in these cases appears to be for the Court to exercise the power which it now has under Order 1, Rule 10(2) of ordering at any stage of the proceedings, the name of a defendant improperly joined to be struck out, instead of dismissing the suit as against him. That will, as held by the Full Bench in Ramaswami Sastrulu v. Kameswaramma (1900) I.L.R. 23 Mad. 361 : 10 M.L.J. 123, have the effect of taking him out of the operation of Section 47, which ought not to apply to him seeing that he has no real concern with the suit. I would answer the first question in the affirmative.

[2] As regards the second question, under Section 4 of the Madras Hereditary Village-offices Act, 1895, the word "emoluments" includes "lands and assignments of revenue payable in respect of such lands" and according to the finding the emoluments in this case included both the lands and an assignment of revenue arising out of them. Under Section 5 these emoluments are "not liable to be transferred or encumbered in any manner whatsoever," reproducing in substance the provisions of Regulation VI of 1831 which made such alienations null and void. Section 17 of the Madras Proprietary Estates Village Service Act, 1894, provides that, "if the remuneration of a village-office consists in whole or in part of lands, or assignments of revenue payable in respect of lands, granted or continued in respect of or annexed to such village-office by the State, the Government may enfranchise the said lands from the condition of service by the imposition of quit-rent, and such enfranchisement shall take effect from such date as Government may notify." Government in this case issued an inam title deed which recited that the inam consisted of an assignment of land revenue and commuted its right to resume the assignment in consideration of payment to Government of a quit-rent in addition to the existing jodi payable to the proprietor. It said nothing about the enfranchisement of the inam or the lands from the condition of service and they remained liable as before, and continued to form the emoluments of the village-office until the issue of the notification which was after the date of the alienation now in question. The lands therefore continued subject to the prohibition against the incumbrance in any manner whatsoever and the alienation in question was undoubtedly void at the time it was made. As pointed out in the order of reference, there is a conflict of decisions in this Court as to whether the subsequent enfranchisement has the effect of validating such alienations. In 1907 it was held by White, C.J., and Miller, J., that, though the transfer was null and void under Regulation VI of 1831, yet after enfranchisement the transferee was entitled under Section 43 of the Transfer of Property Act to require that the transfer should operate on the alienable interest subsequently acquired by the transferor. No authority was cited, and the original illegality of the transfer was not referred to. On the other hand in Narahari Sahn v. Korithan Naidu (1913) 24 M.L.J. 162, it was held on similar facts by Sundara Aiyar and Benson, JJ., that Section 43 has no application to cases where the transfer is forbidden by law on grounds of public policy, referring to Ramasami Naik v. Ramasami Chetti (1906) I.L.J. 30 Mad. 255 : 17 M.L.J. 20

1. This case was approved and followed in Batchu Ramayya v. Dara Satchi (1913) 14 M.L.T. 430, and Karri Ramayya v. Villoori Jagannadhan (1915) 18 M.L.T. 360. The decision in Ramasami Naik v. Ramasami Chetti (1906) I.L.J. 30 Mad. 255 : 17 M.L.J. 201, on which reliance was placed has since been followed in Sri Kakarlapudi Lakshminarayana Jagannada v. Sri Rajah Kandukuri Balasurya Prasada Row . We have not been referred to any English decisions pointing the other, way, and on the whole I think the sound position for us to proceed on is that no equities arise out of a transaction which is prohibited by law on grounds of public policy. The present case no doubt differs from the earlier cases because the transfer by way of mortgage purported to be of enfranchised mirasi and inam lands" and was made after execution of the inam deed by which a quit-rent was imposed on the lands, a step which was intended to be followed, and was followed at an early date, by a publication of the notification enfranchising the lands. The transfer was none the less illegal when it was made, and on the whole I do not think there are sufficient reasons for departing from what I understand to be the general rule especially in the absence of English authority in point. In Bettesworth v. Dean of St. Paul s Sel. Cas. in Ch. 66, 1 Bro. P.C. 240, which is referred to by Lord Macnaghten in Tailby v. The Official Receiver (1888) L.R. 13 A.C. 523, 552, where a covenant in lease to renew for ninety-nine years which was lawful when made was rendered illegal by subsequent statutes, it was held by the House of Lords, that, as the statutes permitted leases for forty years, specific performance by executing a fresh lease for forty years might be decreed, but in that case the original agreement was lawful, and it does not cover the present case where the transaction was illegal at the time it was entered into. As regards the second question my answer is that the transfer was cleary illegal and inoperative when it was made and did not become operative on the subsequent enfranchisement of the lands.

Sadasiva Aiyar, J.

[3] I agree with my Lord in the answers to be given to the two questions referred to us.

Kumaraswami Sastri, J.

[4] I agree.