Viswanatha Sastri, J.:-
(1) The two plaintiffs, father and son, are the appellants in this second appeal preferred against the decree of the subordinate judge, ongole, reversing the decree of the district munsif and dismissing their suit for a declaration that a sale - deed, exhibit b - 1, dated 14th march, 1946, executed by the first plaintiff and his undivided father, the second defendant, in favour of the first defendant, was invalid and inoperative to convey title to ac. 3 - 12 cents of archaka service inaml and purported to have been sold thereunder. It is common ground that the lands sold under exhibit b - 1 are archaka service inam lands ; that the vendors and the vendee are descendants of the original grantee of the service inam lands ; that the lands sold under exhibit b - 1 were allotted to the share of the vendor at a previous family partition and were thereafter solely enjoyed by them ; that on 14th march, 1946, they sold the lands for a consideration of rs. 1000, paid to them by the vendee ; and that the vendee, though not next in succession to the vendors as heir - at - law, was their agnatic relation qualified to perform the archaka service and was indeed required to do so by terms of exhibit b - 1. On these facts the lower appellate court upheld the validity of the sale exhibit b - 1 and dismissed the suit for its cancellation. It was argued on behalf of the plaintiffs that the sale of the archaka service inam lands, was illegal and opposed to public policy and that they were therefore entitled to a declaration of the invalidity of exhibit b - 1 or its cancellation.
(2) This contention comes with bad grace and sounds disingenuous in the mouth of the first plaintiff who, along with his father, the second defendant, received rs. 1000, as consideration for the sale from the vendee and now seeks to retain both the property and the price, by pleading the illegality of the sale. It is not, for his sake, however, that the court entertains the plea which, if one may say so, is contrary to the real justice between the parties but because of the principle that a court should not recognise or give effect to a transaction which is illegal or opposed to public policy. The sale of offices with their emoluments, particularly of offices in the performance of the duties of which the public are interested, is void as being opposed to public policy. Public policy and public interest alike require that there should be no money consideration for appointments to offices in which the public are interested, for, if money may be given to those who appoint, unworthy or improper persons might get themselves appointed. Transfers of the emoluments of an office in which the public are interested, whether the emoluments take the shape of salaries or grants of land or their income, are void as tending to defeat the public objects for which the grants were intended. The presumption is that these emoluments are required for enabling the holder to perform the duties of his office in a proper manner. Traffic by way of sale of public offices and their emoluments, tends to prejudice public interests by interfering with the selection of the most qualified persons and therefore such arrangements are held to be void as being opposed to public policy. Contracts which tend to be injurious to the public or against the public good are void as being contrary to public policy. Where a transfer of properties is pr'ohibited by statute, whether the prohibition is express or implied , it is illegal and cannot be enforced. In india a public office is deemed to be a position of trust and section 6 (f) of the transfer of property act provides that a public office cannot be transferred, nor can the salary of a public officer. The opinion has been expressed that an office of worship is a temple, which is heritable and partible, is not a public office within the meaning of section 6 (f) of the transfer of property act. Hanmappa v. Hanmantgaud, i. L. R. (1947) bom. 789.
(3) There is, however, the main part of section 6 which hits at transfers made contrary to the provisions of the act as well as " any law for the time being in force", an expression which is comprehensive enough to include transfers tending to defeat the rules of hindu law. The cases on this branch of law have arisen principally in connection with transfers of religious and priestly offices. Hereditary priests attached to public temples in this part of the country often hold grants of land made in favour of their ancestors as emoluments of the office. A hereditary archaka office is regarded as a species of property which devolves like any other property according to the ordinary law of inheritance. Though heredity offers no guarantee of fitness for the office, still the law recognises hereditary succession to the office and emoluments of archakas as being in consonance with the presumed intentions of the grantor or the founder. That the hereditary archakaship is not merely office but property as well and, in the absence of proof of custom or usage of a different nature, is partible and heritable according to the hindu law of succession, has been recognised by the decisions of the judicial committee in ganesh chandra v. Lal behari, 1936 71 m. L. J. 740 : l. R. 63 i. A. 448. And bhabatarani v. Ashalatha, (1943) 2 m. L. J. 70 : l. R. 70 i. A. 57 : i. L. R. 2 cal. 137 of the supreme court in angurbala v. Debabrata, (1951) s. G. J. 394 and raj kali kuer v. Ram ratan pandey, (1955) scj 493 and of the madras high court in annaya tanti v. Ammakka hengsu, 1918 35 m. L. J. 196 : i. L. R. 41 mad. 886 (f. B.). And suryanarayana charlu v. Seshammal, (1949) 2 m. L. J. 75.
(4) In alasinga bhattar v. Venkatasudarsana bhattar, (1935) 70 m. L. J. 424. It was laid down that
"in the case of religious offices with emoluments attached thereto, usage has always been to permit partition and inheritability in the various branches according to the laws of inheritance applicable to private property."
in ramanujacharyulu v. Pandurangacharyalu, (1956) an. W. R. 272. A recent decision of this court the law was thus stated : -
"the office of an archaka, when emoluments are attached to it, is heritable and partible property. So long as the services are duly performed the incidence of that property is analogous to those of any other heritable or partible property under hindu law. If the office is jointly owned by the family, the property, which goes with the office, is also joint family property. So long as there is no partition among the members of the family, it follows that the income from the property is joint family income."
(5) Though an archaka family is undivided, it would be open to the members interested to arrange among themselves for the due discharge of the duties of the office and the enjoyment of the emoluments in rotation. The office itself is not divisible in the manner in which the lands attached thereto are, and in order to avoid confusion or scramble, the parties interested may agree to act by turns without a partition of the office and its emoluments. The arrangement may be varied from time to time to suit their convenience and the archaka right would continue to devolve as joint family property. Ramanathan v. Murugappa, (1903) 13 m. L. J. 341 : i. L. R. 27 mad. 192 affirmed in ramanathan chetty v. Murugappa, (1906) 6 m. L. J. 265 : l. R. 33 i. A. 139: i. L. R. 29 mad. 283 (p. C.). And aiswaryanadaji v. Siwaji, (1925) 49 m. L. J. 568 : i. L. R. 49 mad 116, 147.
(6) It is open to a member of the family entitled to the archaka office to renounce his claim thereto, leaving the other members to perform the duties of the office and enjoy the emoluments. Custom has sanctioned a partition of a hereditary archaka office and its emoluments and in many instances, the office and the emoluments happen to be held in minute fractions as a result of successive partitions.
(7) It is open to a member of an archaka family to filter into a partition of the family properties and give up his right to the archakaship in favour of the other sharers taking for his share some money or other property of the family. After a partition of the office and emoluments among the members of an archaka family, the office and the emoluments devolve according to the law of inheritance to ordinary property, female heirs not being excluded except by custom or usage. Angurbala v. Debavrata, (1951) s. C. J. 394. And annaya tantri v. Ammakka hangsu, (1918) 35 m. L. J. 196 : i. L. R. 41 mad 886 (f. B.). Though, the female heir may not be competent to perform the religious rites associated with the worship of a deity, she can get them done by appointing a qualified person as a substitute.
(8) Though the office of hereditary archaka is heritable and partible like any other property, it cannot be freely transferred by the owner or sold by count in execution of a decree against him. The sale of archaka service inam lands has been held to be void as being opposed to public policy because such a sale would leave the burden of service in which the public are interested in the hands of the archaka without the enjoyment of the revenue of the property which was provided to keep him in sufficient comfort to be able to perform the service for which it was granted, anjaneyulu v. Sri venugopala rice mill, (1922) 42 m. L. J. 477 : i. L. R. 45 mad. 620 (f. B.). Apart from any question of custom the decisions of the madras high court recognised only one or possibly two exceptions to the rule against an alienation of a religious office. The decided cases cited before us are many and may be considered in convenient groups. Where the transfer of a hereditary archaka office and its emoluments is to a stranger to the family of the transferor or for value, that is to say, for the pecuniary benefit of the transferor, the transfer is bad, even though the transferee might be a person qualified to act as archaka and the transfer is coupled with an obligation cast on the transferee to perform the duties of the office. A religious office stands on a different footing from private property so far as alienability is concerned. All the decisions agree on this point. Raja vurma v. Ravi vurma, (1876) l. R. 4 i. A. 76 : i. L. R. 1 mad. 235 (p. C.). Gnanasambanda v. Vein, 1899 10 m. L. J. 29 : l. R. 27 i. A. 69 : i. L. R. 23 mad. 271 (p. C.). Kuppa v. Dorasami, (1882) i. L. R. 6 mad. 76. Narayana v. Ranga, (1891) 2 m. L. J. 19 : i. L. R. 15 mad. 183. Lakshmanasarni v. Rangamma, (1902) i. L. R. 26 mad. 31. Sundarambal v. Togavana, (1914) 26 m. L. J. 315 : i. L. R. 38 mad. 850. Rajam bhattar v. Singarammal, (1918) 36 m. L. J. 355. Sri mahant doss v. Govindacharlu, (1934) 68 m. Lj. 295. Janaki animal v. Sanjeevi, (1941) 1 m. L. J. 510. And chelliah v. Rangasami iyengar, (1942) 2 m. L. J. 624. On the adjudication of a debtor as an insolvent, service inam lands held by him do not vest in the official receiver. Masumayya v. Official receiver, (1942) 2 m. L. J. 504.
(9) Where the transfer of a right to an archaka office and its emoluments is made, not for any pecuniary benefit of the transferor and the transferee is the next heir of the transferor and suffers from no disqualification for the performance of the duties of an archaka, the rule against alienation of a hereditary archaka office has been relaxed and the validity of the transfer has been upheld. In such cases the alienation is regarded as being in substance a renunciation of the right to hold the hereditary office. It is, of course, open to a hereditary office - holder to resign his office or relinquish his rights thereby accelerating the succession of the next heir. It is on this principle that a transfer without consideration of an archaka office and its emoluments to the person next in succession to the transferor has been upheld by the courts. Narayana v. Ranga, (1891) 2 m. L. J. 19 : i. L. R. 15 mad. 183. Rajam bhattar v. Singarammal, (1918) 36 m. L. J. 355. Muthukumarasami v. Subbaraya, a. I. R. 1931 mad. 505. Janaki ammal v. Sanjeevi, (1941) 1 m. L. J. 510. Audayya v. Sarabayya, (1944) 2 m. L. J. 7.
(10) There has been a difference of opinion not only between the high courts but among the judges of the same court on the point whether a transfer of the rights of a hereditary archaka in favour of another qualified archaka in the line of heirs of the transferor but not his next heir, is invalid, even though the transfer is neither for consideration nor prejudicial to the interests of the institution. In mancharam v. Pranshankar, (1882) i. L. R. 6 bom. 298. The court relying on the earlier decision in sitaram bhat v. Sitaram, 6 b. H. Cr. 250. Ruled that
"there is no reason why the alienation of a religious office to a person standing in the line of successin and free from objections relating to the capacity of a particular individual to perform the workship of an idol or do any other necessary functions connected with it, shoald not be upheld."
(11) In the above case the transfer was gratuitous and the transferee was in the line of heirs but not the next heir of the transferor. The same view was taken in hanmappa v. Hanmantgaud, i. L. R. 1947 bom. 789. In kuppa v. Dorasami, (1882) i. L. R. 6 mad. 76. The court left this question open but in narayana v. Ranga, (1891) 2 m. L. J. 19 : i. L. R. 15 mad. 183. The opinion was expressed that a transfer of the office of trustee - the office of archaka stands on the same footing - in order to be valid, must be in favour of the sole next heir or body of next heirs. In both these madras cases the transfer was for value and was invalid on that ground.
(12) In rajam bhattar v. Singar ammal, (1918) 36 m. Lj. 355. The court held that the transfer of archakaship in that case was bad as being one for value and in favour of a stranger and therefore it was not necessary for the learned judges to consider the validity of a transfer of an archaka office to persons who by birth or marriage were in the line of heirs of the transferor. The learned judges regarded mancharam v. Pranshankar, (1882) i. L. R. 6 bom. 298. As relating to a case of transfer to one next in the line of succession, though this was not the case. In muthukumarasami v. Subbaraya, a. I. R. 1931 mad. 505. Madhavan nair, j. , observed "the decision in mancharam v. Pran shankar, (1882) i. L. R. 6 bom. 298. Is accepted by this court only for the view that a transfer to one next in the line of succession may be held to be valid. See rajam b, attar v. Singara mmal, in janaki ammal v. Sanjeevi, 1941 1 m. L. J. 510. Venkataramanarao, j. , held that an alienation or release or renunciation of an office of trustee not for value in favour of the immediate heir of the transferor would be valid ; otherwise, it would be invalid. In sri mahant doss v. Govindacharlu, (1934) 68 ml. J. 295. Varadachariar and burn, jj. , followed the decision in mancharam v. Pran shankar, (1882) i. L. R. 6 bom. 298. And held that an alienation of a religious office such as that of an archakaship of temple was not invalid when it was made in favour of one in the line of heirs of the alienor and when it was neither for consideration nor in any way opposed to or inconsistent with the interests of the institution. In calcutta, the decisions have not been uniform. See gobind kumar v. Debendra k. Roy, (1907) 12 c. W. N. 98. Where a strict view prohibiting a transfer of a shebaiti right even in favour of one next in succession, was taken and nirod mohini v. Shibdas, (1909) i. L. R. 36 cal. 975. And mahamaya debi v. Haridas, (1914) i. L. R. 42 cal. 455. Where a liberal view permitting an alienation in favour of persons standing in the line of heirs, was taken. When the transfer of an archaka office is made in favour of the remaining archakas or the sole and immediate heir of the transferor without receiving any valuable consideration, no policy of the hindu law or any other law is violated or contravened and the transaction itself cannot be regarded as being against the presumed intentions of the grantor or founder of the endowment. If an archaka desires to give up his duties, there is no reason why he should not be entitled to surrender the office and its emoluments in favour of the remaining archakas though not his heirs.
(13) If a transfer of the office and emoluments is made in favour of one standing in the line of heirs without any consideration passing from the transferee to the transferor, it cannot be held that the transfer was against the presumed intention of the founder or the grantor of the endowment. The alienee could not be said to be a person incompetent to perform the spiritual services and the interests of the institution or the public could not be said to be prejudiced in any way. Custom has made serious inroads on the theory of the law. Hereditary succession has been recognised in the case of religious offices though heredity is no guarantee of fitness for the office. Along with it, the right to partition of the office has also been recognised. The right of females to succeed to the office even though they are not qualified to perform the spiritual duties has also been established. The next step was to recognise the appointment of a deputy or proxy to officiate to the female heir. The office of archaka with its emoluments has come to be regarded as a species of property, heritable and partible like other private property. It was therefore a natural development of the proprietary idea that the archaka - right should be capable of alienation. As a matter of fact alienations of the office of archaka to persons competent to officiate, have been frequently made and acted upon, the parties not being alive to the existence of any rule of public policy prohibiting such alienations. The decided cases, though there are many, have brought before the courts only a small percentage of such alienations.
(14) In bomaby the restrictions on alienation of offices are less strictly enforced particularly when the alienee happens to be a member of the family. As observed by varadachariar, j. , in sri mahant doss v. Govindacharlu, (1934) 68 m. L. J. 295.
"even in the madras presidency, the objection to alienation would seem to have prevailed in the courts than in the sentiments of the people."
(15) In the present day when, by reason of the descent of the office through successive generations, it is becoming extremely difficult and in many cases impossible for a large number of archakas to maintain themselves from the scanty emoluments pertaining to their share of the office, many of them are obliged to seek other avenues of employment. In such circumstances, there is no reason why courts should refuse to recognise transfers by archakas of their right to the office and the emoluments to the remaining archakas or to those standing in the line of heirs so long as the transfers are gratuitous and not made for the pecuniary benefit of the transferors. Such a transfer does not amount to trafficking in offices and would not let into the office disqualified persons or strangers not intended by the grantor or the founder of the endowment as suitable incumbents of the office. Nor would it detach the income of the service inam lands from the office and prevent the holder of the office from enjoying the emoluments which were intended to enable him to discharge the duties of the office properly. In such a case the transfer does not place the income of the service inam lands beyond the reach of the office holder but secures the income to the incumbent of the office. The process of division and disintegration of hereditary archaka offices and their emoluments has gone so far that it is becoming increasingly difficult to find qualified archakas willing to discharge the duties of their office for the paltry emoluments they get from the service inam lands. Reason, convenience and considerations of public policy alike are in favour of recognising the validity of an alienation by an archaka of his office with its emoluments to the remaining archakas or to one in the line of heirs at least where the alienation is not for consideration and not in any way opposed to or inconsistent with the interests of the institution.
(16) In the present case, however, the transfer was by way of a sale to a divided agnatic relation of the transferors. It is not possible to accept the contention of the respondent and read exhibit b - 1 as a partition arrangement among the members of the family by which one of the sharers took the archaka service inam lands exclusively for his share and the other sharers took some other family property in cash or kind for their shares. The parties had already become divided and had partitioned the archaka service inam lands among themselves. The ist plaintiff and his father, the and defendant, sold the archaka service inam lands which they had got at the partition for a price of rs. 1,000. 00. The vice of the transaction is in its being a sale for consideration, that is to say for the pecuniary benefit of the trarsferors. This circumstance, according to all the authorities, renders the transfer void and inoperative. To this extent the claim of the plaintiffs has to be upheld.
(17) It does not, however, follow that the plaintiffs can retain the property as well as the consideration paid by the purchaser. The 1st plaintiff was himself a vendor under exhibit b - 1 and the consideration for the sale went in discharge of antecedent debts binding on the second plaintiff also. In effect, the plaintiffs are suing to have exhibit b - 1 cancelled on the ground that though the vendee might not be able to found a claim upon it in a court of law, still its illegality or nullity not being apparent on the face of the document, it throws a cloud on their title. Under section 41 of the specific relief act, the court, on adjudging the cancellation of an instrument, may require the party to whom such relief is granted to make any compensation to the other as justice may require. In supersession of the decrees of the courts below there will be a decree that on condition of the plaintiffs paying the 1st defendant the sum of rs. 1,000, the consideration for the sale deed exhibit b - 1, within 6 months from this date, the sale deed exhibit b - 1 shall stand cancelled and be delivered to the plaintiffs. If such payment is not made, the plaintiffs' suit will stand dismissed. In the circumstances, the parties will bear their own costs throughout. Appeal allowed conditionally.