Question: In HR, we often become aware of disabilities affecting our employees. If it is determined that an employee's disability poses a significant threat to others, can we terminate that employee?
Answer: Generally, an employer may discharge an employee with a disability, as defined under the Americans with Disabilities Act if the disability poses "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 42 U.S.C.A. § 12111(3). The evaluation of whether an employee poses a direct threat has many moving parts and is highly individualized. Therefore, employers should take great care in assessing each case individually and with the assistance of counsel.
Title I of the ADA applies to employers who employ 15 or more employees and to state and local government employees and bars discrimination against employees on the basis of their disabilities. 42 U.S.C.A. §§ 12112(5), 12112(a). In order to recover for an unlawful discharge in violation of the ADA, an employee must (1) have a disability, (2) be otherwise qualified to perform the job requirements, with or without reasonable accommodation, and (3) have been discharged solely by reason of his handicap. See Wurzel v. Whirlpool Corp., 482 F. App'x 1, 9 (6th Cir. 2012). An employee will not be considered as "qualified" for his position, as is required under the second element, if he poses a "direct threat." Osborne v. Baxter Health, 798 F.3d 1260, 1276 (5th Cir. 2015). A "direct threat" under the ADA is "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). If an employee is a direct threat under this definition, an employee will not be responsible under the ADA for discharging that employee (or taking other actions which could otherwise be considered discriminatory). Some examples of situations wherein courts have found a direct threat include: factory workers who may unpredictably become incapacitated/have seizures, Wurzel, 482 F. App'x at 9-16; a law enforcement officer who suffered from epilepsy, Coleman v. Pennsylvania State Police, 561 F. App'x 138, 145 (3d Cir. 2014); or a call-center employee at a power company who experienced panic attacks requiring recovery time away from her post, Emerson v. N. States Power Co., 256 F.3d 506, 514-15 (7th Cir. 2001).
Not all threats or risks are "direct threats."
A "direct threat" does not encompass all threats and risks. Therefore, employers must consider whether the threat is in fact "direct threat" as defined by the ADA and regulations interpreting it. This requires the consideration of the four factors outlined by the Equal Employment Opportunity Commission and whether the disability can be reasonably accommodated by the employer. The EEOC's factors include: "(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of the potential harm." 29 C.F.R. § 1630.2(r). A reasonable accommodation could include many things, such as job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, the provision of qualified readers or interpreters, and other similar accommodations. 42 U.S.C.A § 12111(9)(B). Arriving at a reasonable accommodation (or a determination that one does not exist) requires the employer and employee to engage in an interactive process in which the employer and employee work together to reason a final decision on the issue. For more information on the interactive process, please see our Legal Clinic from March 2014.
Because the EEOC factors and interactive process can result in innumerable permutations, employers should make sure to consider each case individually, and because what may seem to be a strong threat may not be and vice versa. For example, even if the risk posed is severe and will assuredly arise, it may not be considered a "direct threat" if it can be ameliorated by reasonable accommodations. In Osborne v. Baxter Health, 798 F.3d 1260 (5th Cir. 2015), the court found that a nurse who was deaf and could not hear patient alarms may not pose a direct threat to the health and safety of the patients because reasonable accommodations, such as visual monitors, could potentially be made. On the other hand, an issue as routine as diabetes can be considered a direct threat if the disease is not properly managed by the employee. Darnell v. Thermafiber, Inc., 417 F.3d 657, 662 (7th Cir. 2005).
The direct threat analysis does not replace the ADA's other requirements and standards.
The direct threat analysis does not replace the general analysis under the ADA. In other words, those employees who may pose a direct threat to health and safety are not considered under a different framework than employees with other disabilities. Rather, the direct threat analysis is conducted in addition to the general ADA analysis. Therefore, employers should exercise care to go about their normal processes for dealing with disabled employees.
If the employee does not self-report his or her disability, you may be limited in your actions.
How you become aware of the threat will influence your ability to act. Most commonly, the employee will report their disability to you. In such a case, you will have an affirmative duty to respond and likely will need to engage in the interactive process of finding a reasonable accommodation. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260-61 (1st Cir. 2001); see above for further discussion of interactive process. Also, in some limited contexts, other regulations and statutes will permit mandatory medical reviews, and such threats may become apparent in these exams which can begin the interactive process. See Atkins v. Salazar, 677 F.3d 667, 670-72 (2011).
But what if the employee does not self-report yet you notice signs of a threat to the health and safety of the employee or others? Can you compel the employee to undergo medical testing and utilize accommodations? This is, again, a complex issue. What is clear is that, in most cases, you cannot order an employee to seek medical attention. In order for an employer to compel a medical examination, it must be able to prove that it had a "reasonable basis for believing that [an employee] is unable to perform the basic functions of her job [...] or pose[s] a direct threat to her own safety or the safety of others." Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 626 (6th Cir. 2014). This standard will require a case-by-case, factual analysis.
In the end, the ADA does not require an employer to retain an employee who poses a health and safety risk to himself or others at work. However, as an employer, you must be cautious to avoid knee-jerk responses to perceived threats and to individually and carefully evaluate each employee's disability, in consultation with counsel, when making employment-related decisions.


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[V.GOPALA GOWDA]AND[ADARSH KUMAR GOEL] JJ.
For Petitioner(s) Mr. R.S. Hegde, Adv. Mrs. Farhat Jahan Rehmani, Adv. Mr. Shanti Prakash, Adv. Mr. Rajeev Singh,Adv. Mr. Basava Prabhu Patil, Sr. Adv. Mr. Anirudh Sanganeria, Adv. Mr. Chinmay Deshpande, Adv. Mr. Amjid Maqbool, Adv. Mr. A. S. Bhasme,Adv. For Respondent(s) Mr. E. C. Vidya Sagar,Adv. Mr. Kartik Seth, Adv. Mr. Subhash Chandra Sagar, Adv. Ms. Jennifer John, Adv. Mr. Irshad Ahmad,Adv. Mr. V. N. Raghupathy,Adv. Mr. Kunal Verma,Adv. Ms. Yugandhara P. Jha, Adv. Mr. Prasanna Mohan, Adv. Mr. Pulkit Tare, Adv. Ms. Ruchi Sahay, Adv.
(hereinafter referred to as the âL.A. Actâ) was set aside.
The lands involved in all these acquisition proceedings are agricultural lands belonging to poor agriculturalists. On 09.01.1984, Trinity House Building Co-Operative Society (hereinafter referred to as the ârespondent-Societyâ) was registered with the object of providing sites for building residential houses for its members. On 12.03.1985, the said society, represented by its President and Vice President entered into an agreement with M/S Srinivasa Enterprises, represented by its proprietor, Mr. S. Rangarajan. The said agreement was entered into between the parties essentially for getting the lands acquired in favour of the respondent-Society. The relevant clauses of the agreement will be extracted in the reasoning portion of the judgment. As per the agreement, a contract of agency was created in favour of Mr. S. Rangarajan to act as a middleman between the respondent-Society and the State Government to get the lands mentioned therein acquired in favour of the respondent-Society.
4.It is also an undisputed fact that between 06.05.1987 and 12.06.1989, the land owners of the lands mentioned in the agreement dated 12.03.1985 have also executed power of attorney(s) in favour of Mr. S. Rangarajan. The state government of Karnataka by its order dated 23.06.1986, fixed the last date as 30.06.1984 for the registration of the societies. The respondent-Society finds a place at Serial No. 43 in the annexure attached to the above government order.
5.By way of order dated 30.04.1987, the state government of Karnataka constituted a âThree Men Committeeâ to verify the claims of land for acquisition being made by the various societies, and a State level Co-ordination Committee also was constituted by the Government to inquire into the affairs of the society before recommending their claim for acquisition.
On 10.03.1988, the Additional Registrar of Co-Operative Societies, Bangalore passed an order under Section 64 of the Karnataka Co-operative Societies Act, 1959, to inquire into certain allegations made against 98 House Building Co-Operative Societies of Bangalore City, including the respondent-Society, and appointed Sri G.V.K. Rao, the then Controller of Weights and Measures to investigate into the allegations of irregularities and malpractices against the concerned societies.
8. Subsequently, on 09.05.1988, the report of the G.V.K. Rao Committee was submitted to the Government for its action. The Report found irregularities in the manner in which the respondent-Society has granted membership to its members. It was stated in the report that the Vice President of the respondent-Society accepted these lapses and even attempted to justify the same.
9. Even after the G.V.K. Rao Committee submitted its report, the state government of Karnataka proceeded to issue the preliminary notification under Section 4(1) of the L.A. Act, which was published in the official gazette dated 09.06.1988, proposing to acquire the lands in question to the extent of 92 acres 38 guntas in Avalahalli and Herohalli villages of Yelahanka Hobli, Bangalore North Taluk, Bangalore District in favour of the respondent-Society.
12. Aggrieved of the common judgment and order passed by the learned Single Judge, the respondent-Society filed Writ Appeals before the Division Bench of the High Court challenging the correctness of the same urging certain legal grounds. The Division Bench of the High Court held that there was no evidence on record to suggest that the âoutside agencyâ (M/s Srinivasa Enterprises) had influenced the acquisition proceedings. On the other hand, it is clear from the material placed on record that the case of the respondent-Society was considered by the State Level Co-ordination Committee on 25.09.1987, and on the basis of the clearance granted by the Committee the state government granted approval to acquire the lands in question. Accordingly, the Division Bench, by way of common final impugned judgment and order dated 06.05.2004 allowed the appeals and set aside the judgment and order passed by the learned single judge and restored the acquisition proceedings. Hence, the present appeals.
13. We have heard Mr. Shekhar Naphade, Mr. V. Giri and Mr. Basava Prabhu S. Patil, the learned senior counsel appearing on behalf of the appellants and Mr. Shanti Bhushan, learned senior counsel appearing on behalf of the respondent-Society and Mr. H.N. Nagamohan Das, the learned senior counsel appearing on behalf of the respondent-original landowners in the first two appeals filed by the so-called purchasers.
upon which strong reliance has been placed by the Division Bench of the High Court, which has been followed by this Court in the cases ofSumitramma v. State of Karnataka, SLP (C) No. 10270 of 1996, decided on 04.10.1996andMuniyappa v. State of Karnataka, SLP (C) No. 14681 of 1995 decided on 04.10.1996. It is submitted that the reliance placed upon the said judgments by the Division Bench of the High Court, in the absence of a scheme framed and approved by the government as required under Section 3 (f)(vi) of the L.A. Act in favour of the respondent-Society, is held to be violative of not only the statutory provisions of law, but also the decisions of this Court referred to supra.
15. It is further contended by the learned senior counsel appearing on behalf of the appellants that the framing of a scheme and its prior approval by the state government is sine qua non for initiating acquisition proceedings for the purpose of Section 3(f)(vi) of the L.A. Act. It is submitted that in the instant case, neither any such scheme has been framed by the respondent-Society nor has there been any approval accorded by the state government before initiating land acquisition proceedings in its favour and therefore, they submit that the entire proceedings are vitiated in law.
â20. We then enquired from Shri Bhat whether his client had submitted housing scheme for the approval of the State Government. Shri Bhat responded to the Courtâs query by relying upon the recommendations made by the State Leval Coordination Committee for the acquisition of 179 acres, one and half guntas land. We have carefully gone through the recommendations of the State Level Coordination Committee but do not find any trace of housing scheme which was under the consideration of the Committee.
22. In Bangalore City Cooperative Housing Society Limited v. State of Karnataka and Ors. decided on 2.2.2012, this Court considered the question whether the approval granted by the State Government for the acquisition of land can be considered as an approval of the housing scheme within the meaning of Section 3(f) (vi) of the Act and answered the same in negative.
19. It is submitted that the above communication does not reflect the existence of any Housing Scheme and the application of mind by the state Government for according approval thereto. It mechanically directs for publication of the notification under Section 4(1) of the L.A. Act.
20. The learned senior counsel appearing on behalf of the appellants contend that the lands in the instant case could not have been acquired in favour of the respondent-Society in the absence of there being an housing scheme framed by it and approval of the same. It is thus, contended that acquisition of lands in the instant case is violative of both the statutory provisions of law as well as the law laid down by this Court.
21. On the other hand, Mr. Shanti Bhushan, the learned senior counsel appearing on behalf of the respondent-Society vehemently opposes the legal contentions advanced on behalf of the learned senior counsel appearing on behalf of the appellants and sought to justify the impugned judgment and order by placing strong reliance on the decision of this Court in the case of Kanaka Gruha (supra). The learned senior counsel further submits that the state government after accepting the report of Three Men Committee and State High Level Co-ordination Committee, by way of its letter dated 26.11.1987, granted approval for acquisition of lands in question in favour of the respondent-Society, the relevant portion of which has been extracted supra.
22. The learned senior counsel further questions the locus standi of the appellants in filing the first batch and second batch of appeals. It is submitted that the agreement dated 12.05.1985 entered into between the respondent-Society and M/s. Srinivasa Enterprises stipulates the respondent-Society to pay consideration to Mr. S. Rangarajan for getting the layout plan approved, costs of the entire lands purchased, execution of layout work etc. It is submitted that the original landowners in the instant case executed the general power of attorney in favour of Mr. S. Rangarajan to get the lands in question acquired. It is further submitted that the preliminary notification was issued under Section 4(1) of the L.A. Act dated 09.06.1988, and the final notification issued under Section 6(1) of the L.A. Act dated 18.03.1989 were challenged by the respondent-original landowners by way of Writ Petitions before the High Court of Karnataka, wherein the learned single judge, by way of common judgment and order dated 12.07.1996 quashed the land acquisition proceedings. It is submitted that within a few days, Mr. S. Rangarajan sold the lands in question in favour of his daughter, son and son in law, who are the appellants in first batch of appeals. It is contended that the purported sale transactions in respect of lands covered in the acquisition notifications is illegal as the same is nothing but fraud played by the said middleman on the original land owners and the society with a mala fide intention to deprive the landowners of their constitutional rights, thereby deceiving not only the original landowners, but also the respondent-Society. It is thus, contended that since the alleged sale of lands in favour of some of the appellants by Mr. Rangarajan on the basis of the power of attorney executed by the landowners is void ab initio in law, they have no locus standi to challenge the legality of the impugned judgment and acquisition proceedings in respect of the lands involved in these proceedings before this Court.
23. Mr. H.N. Nagamohan Das, the learned senior counsel appearing on behalf of the respondent original landowners-farmers sought to justify the impugned judgment and order passed by the Division Bench of the High Court. It is further submitted by the learned senior counsel that during the pendency of the Writ Appeals before the High Court, there came to be a compromise between the farmers and the society. The compromise is immensely beneficial to farmers as for the acquisition of every acre, each one of them are entitled for allotment of one site and the society has agreed to deposit the award amount as determined by the Land Acquisition Officer. The learned senior counsel submits that if the acquisition proceedings are not upheld, the farmers will be deprived of both the award amount as well as a site for every acre of land. In such a scenario, the only party which stands to gain is the fraudulent purchasers of the lands. Alternatively, he submits that even if the acquisition proceedings are quashed on the basis of the non compliance with Section 3(f) (vi) of the L.A. Act and decisions of this Court referred to supra and the sale transactions between Mr. S. Rangarajan and some of the appellants are held void, then also the landowners will get justice for depriving them and their family members of livelihood for more than 28 years by preventing them from cultivating the said lands and earning their livelihood.
25. We are unable to agree with the contention advanced on behalf of the learned senior counsel appearing on behalf of the appellants. Once the land is sought to be acquired in favour of the respondent-society and notifications issued under Sections 4(1) and 6(1) of the L.A. Act regarding the same, the respondent-Society acquires the right to challenge the quashing of the acquisition proceedings by a court of law. The contention advanced by Mr. Shanti Bhushan, the learned senior counsel appearing on behalf of the respondent-Society that the appellant-purchasers have no locus standi to file these special leave petitions cannot be accepted by us for the reason that they had been impleaded as respondents in the Writ Appeals before the High Court.
1. Whether the acquisition of lands in favour of the respondent-society in the impugned acquisition proceedings is covered under the definition of the term public purpose, as defined under Section 3(f)(vi) of the L.A. Act?
2. Whether the sale transactions in favour of the appellants in the first and second batch of appeals during the pendency of the proceedings by the Power of Attorney(s) holder Mr. S. Rangarajan, on behalf of some of the land owners and sale of lands by some of the other landowners during the pendency of the Writ Petitions in favour of the appellant-purchasers in connected second appeals is legal and valid?
3. Whether the appellant-purchasers are entitled for the reliefs as prayed by them?
â(f) the expression âpublic purposeâ includes- â¦..
The aforementioned amount was enhanced to Rs. 170 per acre by way of supplementary agreement dated 05.03.1992.
AND WHEREAS we have received the full consideration for the said schedule property as per Agreement under separate document and receipt.
A perusal of the agreement executed between the respondent-Society and Mr. Rangarajan, as well as the power of attorney(s) executed by the landowners in favour of Mr. Rangarajan would clearly show that the ultimate intent of the parties was to get the lands of the landowners acquired in favour of the respondent-Society.
20. Now the question which is to be answered is as to whether in view of the definition of âpublic purposeâ introduced by the aforesaid amending Act 68 of 1984 in Section 3(f)(vi), is it open to the appropriate Government to acquire land for cooperative society for housing scheme without making proper enquiry about the members of the Society and without putting such housing co-operative society to term in respect of nature of construction, the area to be alloted to the members and restrictions on transfer thereof?
110. In our view, none of the orders and judgments referred to hereinabove can be relied upon for holding that even though the appellant had not framed any housing scheme, the acquisition in question should be deemed to have been made for a public purpose as defined in Section 3(f) (vi) simply because in the representation made by him to the Revenue Minister of the State, the Executive Director of the appellant had indicated that the land will be used for providing sites to poor and people belonging to Backward Class and on receipt of the recommendations of SLCC the State Government had directed the Special Deputy Commissioner to issue notification under Section 4(1) of the 1894 Act and that too by ignoring the ratio of the judgments of the three-Judge Benches in 1st H.M.T. and 2nd H.M.T. cases and the judgment of the two-Judge Bench in Vyalikaval House Building Coop. Society case.
111. In majority of the cases decided by the High Court to which reference has been made hereinabove, the petitioners were non-suited on the ground of delay and laches or participation in the award proceedings.In Muniyappa case, the judgment in 1st H.M.T. case was distinguished on the premise that a scheme had been framed and the same had been approved by the State Government and further that the petitioner had failed to show that the approval was vitiated due to intervention of the extraneous consideration. In Sumitramma case this Court noted that in 1st H.M.T. case, no separate order was made by the Government for grant of approval whereas in Sumitramma case an order has been passed on 14-10-1985 conveying the Governmentâs approval for the issuance of Notification dated 21-1-1986 under Section 4(1) of the 1894 Act. In Kanaka Gruha case also, this Court treated the direction contained in letter dated 14-11-1985 of the Revenue Commissioner and Secretary to the Government to the Special Deputy Commissioner, Bangalore to initiate the acquisition proceedings by issuing notification under Section 4(1) as an approval within the meaning of Section 3(f)(vi).
33. The stand of the respondent-Society is that the acquisition of lands by the State Government is under Section 3 (f) (vi) of the L.A. Act and that a scheme has been submitted and the same has been approved. But from a perusal of the original acquisition file of the state government, it is clear that there is no such scheme and no prior approval of the same by the State Government as required under Section 3 (f) (vi) of the L.A. Act.
34. Thus, in the light of the judgments of this Court referred to supra, and in the absence of framing of scheme by the respondent-Society and approval of the same by the State Government as required under Section 3 (f)(vi) of the L.A. Act, the Division Bench, holding that the letter dated 26.11.1987 referred to supra amounts to approval of the scheme, is wholly erroneous in law for the reason that neither the Three Men Committee, nor the State Level Co-ordination Committee even adverted to the said letter in their proceedings. Further, no details are forthcoming from the original file regarding the details of the scheme, and the application of mind by the state government to approve the same. In the light of the decisions of this Court, as well as the wording of Section 3(f) (vi) of the L.A. Act, we are constrained to hold that the acquisition proceedings in the instant case cannot be said to be one for âpublic purposeâ as defined under Section 3 (f) (vi) of the L.A. Act, especially in the light of the fact that not only was there no scheme formulated by the respondent-Society and approved by the State Government for the said purpose before initiating the acquisition proceedings, but that the evidence on record clearly indicates that the respondent-Society paid consideration to Mr. S. Rangarajan to act as the agent between it and the state government, to ensure that the lands of the original land owners are acquired in its favour. Upholding such an acquisition would be akin to approving to such type of agreements which are opposed to public policy and the same cannot be allowed by this Court under any circumstances, as the concept of hiring middlemen to get lands of the poor agricultural workers acquired by the state government in favour of a Cooperative Society is abhorrent and cannot be granted the sanction of law.
â7. All Acts, Deeds and things connected with the Acquisition of lands as aforesaid shall be got completed by the Second Party with a view to facilitate Acquisition of lands within a period of 18 months or any period to be extended in writing by the First Party.
It is clear that the parties to the said agreement were not even able to honour the terms of the same. Thus, the acquisition of the lands cannot be allowed to sustain for that reason as well.
(hereinafter referred to as the âNew L.A. Act, 2013â), if the validity of the acquisition of the lands in question is upheld. This stand of the state government clearly goes to show the seriousness in which it has exercised its eminent domain power in such important case of acquisition of lands of poor agricultural workers in blatant violation of the provisions of the L.A. Act and law laid down by this Court.
37. Thus, the impugned notifications issued under Sections 4(1) and Section 6(1) of the L.A. Act are bad in law as the same suffer from not only legal mala fides but also legal malice, which amounts to colourable exercise of power by the state government and therefore, the same are liable to be quashed and accordingly quashed.
38. At this stage, it is also important to reflect on another argument advanced by the learned senior counsel appearing on behalf of the appellants, that since till date no award has been passed in favour of the landowners by the Land Acquisition Officer and therefore, the land acquisition proceedings are lapsed on that count also by virtue of Section 11A of the L.A. Act.
â114. Repeal and saving.â(1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.
40. On the other hand, Mr. Shanti Bhushan, the learned senior counsel appearing on behalf of the respondent-Society very strongly opposed the said contention placing reliance upon Section 24(1)(a) of the New L.A. Act, 2013 and Section 11A of the L.A. Act that an Award could not be passed because of the status quo order passed by way of an interim order that had been passed during the pendency of the writ petitions, writ appeals and as well as the proceedings before this Court. Therefore, the acquisition proceedings cannot be said to have lapsed on that ground alone.
41. In view of the fact that for the reasons stated supra, we have already come to the conclusion that the acquisition proceedings in respect of the acquired lands are liable to be quashed and there is no need for us to render an opinion on this question of law in these cases, as interesting as it is.
42. Having arrived at the conclusion on the points framed in these appeals for the reasons stated supra, the acquisition proceedings in the instant case are liable to be quashed, we now turn our attention to answer the question of the relief required to be granted by this Court in favour of the appellants in the appeals arising out of SLP (C) Nos. 13656-13684 of 2004 and the appeals arising out of SLP (C) Nos. 18090-18118 of 2004. The appellants in the connected third appeals arising out of SLP (C) No. 23336-23339 of 2004 are the original owners of lands who had approached the High Court after a long lapse of time. Therefore, Mr. Shanti Bhushan learned senior counsel appearing on behalf of the respondent-Society submits the appeals arising out of SLP (C) Nos. 23336-23339 of 2004 are liable to be dismissed on account of delay and laches as they have approached the High Court after long lapse of time without proper and sufficient explanation in approaching belatedly to the High Court by filing writ petitions. Mr. Shekhar Naphade, the learned senior counsel appearing on behalf of the said appellants-landowners has seriously opposed the above contention by contending that the said question has already been answered by this Court in H.M.T. House Building Coop. Society (supra) wherein it was held that once the proceedings are void ab initio in law for non-compliance with mandatory statutory requirement of prior approval of the Scheme, the original owners cannot be shut out from the Court in challenging the acquisition proceedings and therefore, they are entitled to challenge the same at any point of time even in the collateral proceedings. We have accepted the above contention as the same is well founded and tenable in law.
The respondent-original landowners in the first appeal had executed power of attorney(s) in favour of Mr. S. Rangarajan to facilitate him to get the lands acquired in favour of the respondent-Society, the relevant terms of which have been extracted supra to show that they have not executed the power of attorney in his favour to sell their lands other than the respondent-Society. On the basis of the same the acquisition proceedings were initiated and the notifications under Section 4(1) and 6(1) of the L.A. Act were issued. Some of the respondent-original landowners objected to the same by submitting their objections to the proposed acquisition of their lands before the Land Acquisition Officer after Section 4(1) notification was published. No doubt their objections have been mechanically overruled by the Land Acquisition Officer and the State Government without application of mind to the facts of the case and the provisions of the L.A. Act. The fact that the report submitted by the Special Deputy Commissioner under Section 5A(2) of the L.A. Act has not been even considered by the State Government properly and objectively is evident from the original file produced in these cases. After the Writ Petitions were allowed by the learned single Judge of the High Court, the middleman, Mr. S. Rangarajan played fraud on the land owners and the society by making use of said Power of Attorney(s) and executed the sale deeds in favour of his son, daughter and son-in-law who are the appellants in the appeals arising out of SLP (C) Nos. 13656-13684 of 2004, within a span of a few days from the date of passing the judgment by the learned Single Judge in the writ petitions. The said action of Mr. S. Rangarajan tantamounts to fraud played by him upon the respondent-original landowners and therefore, the said transaction of executing the sale deeds in favour of his son, daughter and son in law is void ab initio in law.
44. As far as the sale in favour of the appellants in the appeals arising out of SLP (c) Nos. 18090-18118 of 2004 is concerned during the pendency of the writ petitions, the same is also void ab initio in law as the same happened during the pendency of the Writ Petition before the learned single Judge of the High Court. A Division Bench of this Court in the case of Uddar Gagan Properties Ltd. v. Sant Singh & Ors.12 held that the sale transactions of a similar nature is void ab initio in law. Thus, the transactions of the alleged sales made during the pendency of the proceedings are 12 C.A. No. 5072 of 2016, decided on 13.05.2016 wholly illegal and void ab initio in law and therefore the same cannot be allowed to sustain in law. The said sale transactions are also contrary to law which is in operation in respect of agricultural lands.
45. The Impleadment Application Nos. 74-102 of 2010 filed in the appeals arising out of the SLP (C) Nos. 13656-13684 of 2004 are also liable to be rejected, as the applicant therein claims to be the Power of Attorney(s) holder of some of the lands in question and agreements of sale. Since he neither approached the High Court, nor this Court by way of filing SLPs and neither the agreements of sale nor the power of attorney(s) confer any right upon him at this time, as the same is barred by the provisions of the Land Reforms Act, 1952, provisions of the Specific Relief Act as well as the Limitation Act, the applicant has no legal right to come on record to challenge the impugned judgment and therefore the Impleadment Applications are rejected, as the same are wholly unsustainable in law.
(a) The appeals filed by the so-called purchasers and some of the landowners seeking to set aside the common impugned judgment and order dated 06.05.2004 passed by the Division Bench of the High Court of Karnataka in Writ Appeal Nos. 7543-7557 of 1996 and other connected appeals are allowed to the extent as indicated below and the impugned judgment and order is hereby set aside. The common judgment and order dated 12.07.1996 passed by the learned single Judge of the High Court in Writ Petition No. 8188-8201 of 1989 and other connected writ petitions in quashing the acquisition notifications and proceedings are restored.
(b) We also hold that the transfer of the acquired lands by way of the alleged sale deeds executed by Mr. S. Rangarajan in favour of the appellants in the appeals arising out of SLP (C) Nos. 13656-13684 of 2004, as well as the transfer of lands by way of alleged sale deeds in favour of some of the appellant-purchasers in the appeals arising out of SLP (C) Nos. 18090-18118 of 2004 are illegal and void ab initio in law.
(c) Since the learned single Judge of the High Court quashed the acquisition notifications and proceedings at the instance of the original landowners, which common judgment and order has been restored by this Court by setting aside the impugned judgment and order passed by the Division Bench of the High Court in the Writ Appeals filed by the respondent-Society, we grant the relief as has been granted by the learned single Judge in favour of the said original landowners, who are the respondents in the first two appeals before us and also allow the appeals filed by some of the landowners in the civil appeals arising out of SLP (C) No. 23336-23339 of 2004.
(d) Since we have set aside the common impugned judgment and order of the Division Bench of the High Court of Karnataka, we consequently restore the common judgment and order of the learned single Judge passed in the Writ Petitions, wherein the acquisition notifications and proceedings in respect of the lands of some of original landowners have been quashed at their instance. The same shall now be enjoyed by them. So also the appellants in the appeals arising out of SLP (C) Nos. 23336-23339 of 2004 are entitled for the same relief as we quashed the acquisition notifications and proceedings. For this purpose, we direct the Deputy Commissioner of Bangalore, Urban District and also the Commissioner of Police/DGP to extend all such protection and assistance to the landowners to ensure that this judgment and order is implemented properly.

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[3 Russ. 48] [38 Eng. Rep. 492] Nov. 8, 9, 1827. The appeal in Dearle v. Hall was heard.
Before the Lewd Chancellor [Lyndhurst]. Mr. Sugden and Mr. Phillimore, for the appellants.
They urged the same topics, and referred to the same authorities, as were relied on by Mr. Shadwell in Loveridge v. Cooper. They further cited Tourville v. Naish (3 P. Wms. 307); the dictum in Brace v. The Duchess of Marlborough (2 P. Wms. 495), "That, in all cases where the legal estate is standing out, the several incumbrancers must be paid according to their priority in point of time"; and Lord [38 Eng. Rep. 493] Thurlow’s dictum in Davies v. Austen (1 Ves. Jun. 249), "A purchaser of a chose in action must always abide by the case of the person from whom he buys: that I take to be an invariable rule."
The negligence, said they, which was imputed to the Plaintiffs was merely this, that, having an incumbrance on a fund, they had omitted to take a step which might probably have been the means of bringing the existence of the incumbrance to the knowledge of intending purchasers. But where was the authority, which justified the court in [3 Russ. 49] imposing such a duty on an incumbrancer? The contrary doctrine was established by Osborne v. Lea (9 Mod. 96), where it was held, that a person, having an incumbrance on an estate, was not bound to give notice of it to persons whom he knew to be in treaty for the purchase of the property.
Looking merely at the comparative want of caution in the parties, the Plaintiffs were not more culpable than Hall. The enrolment of their annuities furnished to the whole world ample means of protection; and if Hall had searched at the enrolment-office, he would have found that he was purchasing a property which his vendor had previously parted with.
In the argument before the Master of the Rolls, a case of Wright v. Lord Dorchester (3) has cited as an au [3 Russ. 50] thority for preferring a second incumbrancer, who had given notice, to a prior incumbrancer who had not given notice. The order made in that suit was merely inter [3 Russ. 51] locutory; and, though the dividends were directed to be paid to the second incumbrancer, he was required to give security to refund them, if the final decree of Court should [3 Russ. 52] not be in his favour. It is, therefore, evident, that Lord Eldon did not mean to decide the question in that stage of the cause.
[3 Russ. 53] Mr. Horne and Mr. Barber, for Hall. They followed the same train of argument, which had been urged by the defendant in Loveridge v. Cooper; [3 Russ. 54] and further cited, Burrowes v. Lock (10 Ves. Jun. 475), Ex parte Knott (11 Ves. 609, 618), and Wright v. Lord Dorchester.
The order made in the last of these cases was, they argued, a direct authority on the point; for Lord Elden would not have dissolved the injunction, and directed payment to be made to the second incumbrancer, if he had not had a clear and decisive opinion on the subject. It had been stated by one of the counsel who were concerned in that case, that the Lord Chancellor was of opinion, that the power of attorney, which was executed by the trustees to the solicitor of the second purchaser, was equivalent to a declaration of trust in his favour. Lord Eldon required that Brown should give security to refund the money, not because he had any doubt as to the law upon the facts as they were presented to the Court by Brown's answer, but because, when the cause came to a hearing, those facts might be displaced, and the Court might have then to adjudicate upon a totally different state of circumstances. Brown might fail in proving that he had made the inquiry, received the answer, and given the notice, which his answer insisted on; for the purpose of the motion to dissolve the injunction, the Court was to act upon the statements of the answer on those points; at the hearing, those statements would go for nothing; the decree would proceed merely upon the facts proved; and Brown was required to give security to refund, because it might happen that the facts proved in the cause would not coincide with the facts stated in his answer.
December 24, 1828. The Lord Chancellor [Lyndhurst]. The cases of Dearle v. Hall, and Loveridge v. Cooper, were decided by Sir Thomas Plumer; and from his decree there is, in each of them, an appeal, which stands for judgment. As the two cases depend on the same principle, though the facts are, to a certain decree, different, the better course will be to dispose of both together; and as Dearle v. Hall was the first of the two which came before the Court below, though it was not argued on appeal till after Loveridge v. Cooper had been heard, I shall first direct my attention to the facts on which it depends.
[3 Russ. 56] Zachariah Brown was entitled, during his life, to about £93 a-year, being the interest arising from a share of the residue of his father's estate, which, in pursuance of the directions in his father's will, had been converted into money, and invested in the names of the executors and trustees. Among those executors and trustees was a solicitor of the name of Unthank, who took the principal share in the management of the trust. Zachariah Brown, being in distress for money, in consideration of a sum of £204, granted to Dearle, one of the Plaintiffs in the suit, an annuity of £37 a-year, secured by a deed of covenant and a warrant of attorney of the grantor and a surety; and, by way of collateral security, Brown assigned to Dearle all his interest in the yearly sum of £93: but neither Dearle nor Brouwn gave any notice of this assignment to the trustees under the father's will.
Shortly afterwards, a similar transaction took place between Brown and the other Plaintiff, Sherring, to whom an annuity of £27 a-year was granted. The securities were of a similar description; and, on this occasion, as on the former, no notice was given to the trustees.
These transactions took place in 1808 and 1809. The annuities were regularly paid till June 1811; and then, for the first time, default was made in payment.
Notwithstanding this circumstance, Brown, in 1812, publicly advertised for sale his interest in the property under his father's will. Hall, attracted by the advertisement, entered, through his solicitor, Mr. Patten, into a treaty of purchase; and it appears from the correspondence between Mr. Patten and Mr. Unthank, that the former exercised due caution in the transaction, and [3 Russ. 57] made every proper inquiry concerning the nature of Brown's title, the extent of any incumbrances affecting the property, and all other circumstances of which it was fit that a purchaser should be apprised. No intimation was given to Hall of the existence of any previous assignment; and his solicitor being satisfied, he advanced his money for the purchase of Brown's interest, and that interest was regularly assigned to him. Mr. Patten requested Unthank to join in the deed: but Mr. Unthank said, "I do not choose to join in the deed; and it is unnecessary for me to do so, because Z. Brown has an absolute right to this property, and may deal with it as he pleases." The first half-year's interest, subject to some deductions, which the trustees were entitled to make, was duly paid to Hall; and, shortly afterwards, Hall for the first time ascertained, that the property had been regularly assigned, in 1808 and 1809, to Dearle and to Sherring.
Sir Thomas Plumer was of opinion, that the Plaintiffs had no right to the assistance of a court of equity to enforce their claim to the property as against the Defendant Hall, and that, having neglected to give the trustees notice of their assignments, and having enabled Z. Brown to commit this fraud, they could not come into this Court to avail themselves of the priority of their assignments in point of time, in order to defeat the right of a person who had acted, as Hall had acted, and who, if the prior assignments were to prevail against him, would necessarily sustain a great loss. In that opinion I concur.
It was said, that there was no authority for the decision of the Master of the Rolls — no case in point to support it; and certainly it does not appear that the precise question has ever been determined, or that it has [3 Russ. 58] been even brought before the Court, except, perhaps, so far as it may have been discussed in an unreported case of Wright v. Lord Dorchester. But the case is not new in principle. Where personal property is assigned, delivery is necessary to complete the transaction, not as between the vendor and the vendee, but as to third persons, in order that they may not be deceived by apparent possession and ownership remaining in a person, who, in fact, is not the owner. This doctrine is not confined to chattels in [38 Eng. Rep. 495] possession, but extends to choses in action, bonds, &c.: in Ryall v. Rowles (1 Ves. Sen. 348; 1 Atk. 165) it is expressly applied to bonds, simple contract-debts, and other choses in action. It is true that Ryall v. Rowles was a case in bankruptcy; but the Lord Chancellor called to his assistance Lord Chief Justice Lee, Lord Chief Baron Parker, and Mr. Justice Barnett; so that the principle, on which the Court there acted, must be considered as having received most authoritative sanction. These eminent individuals, and particularly the Lord Chief Baron and Mr. Justice Burnett, did not, in the view which they took of the question before them, confine themselves to the case of bankruptcy, but stated grounds of judgment which are of general application. Lord Chief Baron Parker says, that, on the assignment of a bond debt, the bond should be delivered, and notice given to the debtor; and he adds, that, with respect to simple contract-debts, for which no securities are holden, such as book-debts for instance, notice of the assignment should be given to the debtor in order to take away from the debtor the right of making payment to the assignor, and to take away from the assignor the power and disposition over the thing assigned (1 Ves. Sen, 367; 2 Atk. 177). In cases like the present, the act of giving the trustee notice, is, in a certain degree, taking possession of the fund: it is going as far towards equit [3 Russ. 59] able possession as it is possible to go; for, after notice given, the trustee of the fund becomes a trustee for the assignee who has given him notice. It is upon these grounds that I am disposed to come to the same conclusion with the late Master of the Rolls.
I have alluded to a case of Wright v. Lord Dorchester, which was cited as an authority in support of the opinion of the Master of the Rolls. In that case, a person of the name of Charles Sturt, was entitled to the dividends of certain stock, which stood in the names of Lord Dorchester and another trustee. In 1793, Sturt applied to Messrs. Wright and Co., bankers at Norwich, for an advance of money, and, in consideration of the monies which they advanced to him, granted to them two annuities, and assigned his interest in the stock as a security for the payment. No notice was given by Messrs. Wright and Co. to the trustees. It would appear that Sturt afterwards applied to one of the defendants, Brown, to purchase his life-interest in the stock; Brown then made inquiry of the trustees, and they stated that they had no notice of any incumbrance on the fund: upon this B. completed the purchase, and received the dividends for upwards of six years. Messrs. Wright then filed a bill, and obtained an injunction, restraining the transfer of the fund or the payment of the dividends; but, on the answer of Brown, disclosing the facts with respect to his purchase, Lord Eldon dissolved that injunction. At the same time, however, that he dissolved the injunction, he dissolved it only on condition that Brown should give security to refund the money, if, at the hearing, the Court should give judgment in favour of any of the other parties. That case was attended also with this particular circumstance, that the party, who pledged the fund, stated by his answer, that, when he executed the security to Wright and Co., he considered that the pledge was meant [3 Russ. 60] to extend only to certain real estates. For these reasons, I do not rely on the case of Wright v. Lord Dorchester as an authority; I rest on the general principle to which I have referred; and, on that principle, I am of opinion that the Plaintiffs are not entitled to come into a court of equity for relief against the Defendant Hall. The decree must, therefore, be affirmed, and the deposit paid to Hall.
The case of Loveridge v. Cooper, though the circumstances are somewhat different, is the same in principle with Dearle v. Hall, and must follow the same decision.
(1) 1 Ves. Sen. 367. This passage of the judgment of the Lord Chief Baron is given by Atkyns (1 Atk. 177) in the following words: "If a bond is assigned, the bond must be delivered, and notice must be given to the debtor; but in assignments of book-debts, notice alone is sufficient, because there can be no delivery; and such acts as are equal to a delivery of goods which are capable of delivery. Domat. l. i. t. 2, s. 2. par. 9, says, 'Things incorporeal, such as debts, cannot properly be delivered.' This is to shew the nature of assignments of debts by notice to the debtor. This clause, therefore, extends to things in action; and all has not been done that might have been done by the assignee to vest the right of them in himself, [38 Eng. Rep. 496] and to take away from the bankrupt the power and disposition of them, for no notice has been given to the debtors."
(2) Mr. Sugden's Treatise on the Law of Vendors and Purchasers (edition 1822) contains the following observations on the subject: — "A purchaser of any equitable right, of which an immediate possession cannot be obtained, should, previous to completing his contract, inquire of the trustees, in whom the property is vested, whether it is liable to any incumbrance. If the trustee make a false representation, equity would compel him to make good the loss sustained by the purchaser in consequence of the fraudulent statement. Burrowes v. Lock, 10 Ves. 470. When the contract is completed, the purchaser should give notice of the sale to the trustee. The notice would certainly affect the conscience of the trustee, so as to make him liable in equity, should he convey the legal estate to any subsequent purchaser; and it would also, perhaps, give the purchaser a priority over any former purchaser, or incumbrancer, who had neglected the same precaution." Page 11.
"Upon the purchase of a chose in action, or of any equitable right, it is the invariable practice of the profession to require notice of the sale to be given to the trustee. This, of course, binds his conscience. And notwithstanding the general rule, that, with respect to equitable right, qui prior est tempore potior est jure, it seems probable that equity would prefer a subsequent purchaser, who had given a proper notice to the trustee, to a prior purchaser, who had neglected to do so. At least, there is a case which seems, in some measure, to authorise this conclusion." Page 700.
(3) The following were the material circumstances in Wright v. Lord Dorchester [S. C. 2 L. J. Ch. (O. S.) 78]. — Mr. Sturt was entitled to a life-interest in a sum of stock standing in the names of Lord Dorchester and Mr. Bouverie; and, in 1793, assigned it, with other property, to Wright, as a security for the payment of two annuities. In 1795, he proposed to sell his interest in the stock to Brown, who, having inquired of the trustees, and being informed by them, that they knew of no incumbrance on the fund, completed his purchase: and the trustees executed a power of attorney to Brown's solicitor, under which the dividends were received and paid to Brown till 1801. In that year Wright filed a bill, and obtained an injunction to restrain the transfer of the stock and the payment of the dividends.
The answer of Brown stated the title under which he claimed; and that of Sturt alleged, that Wright's security was meant to comprehend nothing beyond certain real estates.
Upon the answer, Lord Eldon, in 1809, dissolved the injunction against the payment of the dividends, and ordered the dividends to be paid to Brown, upon his giving security to refund the amount, in case a decree should be made against him.
Between John Wright, Ichabod Wright, Francis Beresford, and Francis Evans, Plaintiffs, and George Darner, Esquire, now Earl of Dorchester, and Edward Bouverie, Charles Sturt, Jonathan Brown, and the Governor and Company of the Bank of England, Defendants.
Reg. Lib. B. 1808, fo. 420.
 See Tourville v. Naish, 3 P. Wms. 307, and see 2 P. Wms. 495; 15 Ves. 354; 2 Taunt. 415.
 Stanhope v. Earl Verney, Butler's n. (1) to Co. Litt. 290 b, and see 1 Ves. Sen. 367; 9 Ves. 410.
Original Item: "Dearle v. Hall"

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The Quapaw Indians are still under National tutelage; the guardianship of the United States continues notwithstanding the citizenship conferred upon allottees.
Where Congress has imposed restrictions upon alienation of an allotment, the United States has capacity to sue for the purpose of setting aside conveyances or contracts transferring such restrictions.
Restrictions under the Act of March 2, 1895, being for a specified period, were absolute, and bound the land for that period, whether in the hands of the allottee or his heirs, except as to leasing it for the specified terms permitted by the Act of June 10, 1896, or by the supplemental Act of June 7, 1897; neither of those acts gave the allottee or his heirs any power to dispose of his or their interest in the lands subject to the lease or any part of it.
Assignments of interest in rents and royalties which pertained to the reversion of the land of 1896 and 1897 are invalid.
Rents and royalties already accrued from lands are personal property, but those to accrue are a part of the estate, remaining in the lessor.
"Overlapping leases" of Indian allotments are abnormal, and the practice of making them facilitates abuses in dealing with ignorant and inexperienced Indians.
The rule that a general power to lease for not exceeding specified period, without saying either in possession or on reversion, only authorizes a lease in possession, and not in futuro, applies to the power given allottee Indians by the Acts of 1896 and 1897, and leases made for the full period subject to an existing and partly expired lease for the same number of years are unauthorized and void.
The government brings this appeal to review a decree of the circuit court of appeals which affirmed a decree dismissing, upon demurrer, its suit as against the appellees. 197 F. 292.
"Provided that said allotments shall be inalienable for a period of twenty-five years from and after the date of said patents. "
"That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. And said allottees and their lessees and tenants shall have the right to employ such assistants, laborers, and help from time to time as they may deem necessary: Provided that, whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or disability, any such allottee cannot improve or manage his allotment properly and with benefit to himself, the same may be leased, in the discretion of the Secretary, upon such terms and conditions as shall be prescribed by him. All acts and parts of acts inconsistent with this are hereby repealed."
(1) Lease, dated January 11, 1902, to A. W. Abrams, for ten years from date, in consideration of the sum of $10, and a royalty of five percent of the market value of all minerals mined or removed (except gas, for which there was to be paid $40 per annum for each paying well), with the proviso that there should be a minimum rental of $20 a year in case the royalties did not exceed that amount. On August 13, 1903, the lease was assigned by Abrams to the Iowa & Oklahoma Mining Company.
for ten years from date, in consideration of $18, and of royalties which were the same as in first lease save that the minimum rental was $21 a year. This lease was assigned on November 2, 1904, to the Iowa & Oklahoma Mining Company.
(3) Lease, dated March 25, 1905, to L. C. Jones, and the appellee A. J. Thompson, for ten years from date, for $10 and five percent royalty. It was stated that the lease was subject to the first lease above mentioned. The interest of Jones was assigned to the appellee A. J. Thompson, on July 31, 1905.
(4) Lease, dated April 4, 1905, to the Iowa & Oklahoma Mining Company, for ten years from date, for $25, with the same royalties as in the first lease above mentioned and with minimum rental of $21 a year.
(5) Lease, dated May 12, 1906, to the same company, for ten years from date, and with the same consideration as that of the lease described in paragraph (4). It was provided that "this lease and all former leases above referred to shall run concurrently," the lessee being entitled to elect under which of the leases it would operate.
(6) Lease, dated July 28, 1906, to the same company, for the term of twenty years from date for $21, with the same royalties and minimum rental as those reserved in the preceding lease described in paragraph (5).
(7) Grant or assignment, dated August 16, 1902, to the appellee Charles F. Noble, of all the allottee's "right, title, and interest in and to the royalty, rent, and proceeds" of the mining lease dated January 11, 1902, made to Abrams, described in paragraph (1). It was further agreed by said instrument that, if the Abrams' lease "should be surrendered and become void the within lease should hold good for the period of ten years." On the same date, Noble assigned "a one-half interest in the above-described instrument" to John M. Cooper.
"of two and one-half percentage of the entire product mined from said land and sold on or subsequent to the 31st day of January, 1906, and up to and including the 11th day of January, 1912,"
and assigned to the above-mentioned appellees "an undivided one-half interest in and to the said judgment for royalties," that is, "one and one-fourth percent of the whole product on said lands" during the period covered by the first lease to Abrams, described in paragraph (1).
bill (apart from the first lease to Abrams) were "inequitable and unconscionable" and a fraud upon the allottee.
The validity of the first lease was conceded by the government, but it was alleged that all the other leases and the assignments were in violation of the express restriction subject to which the allotment was made.
Demurrers were filed by all the defendants. The circuit court held that the government was not entitled to impeach the transactions upon the ground of fraud, but could challenge the validity of the several instruments as being in violation of the statutory restriction. It is not important here to consider the disposition made of the leases described in paragraphs (2), (4), (5), and (6), as these are not involved in this appeal. It is sufficient to say that the demurrers of Abrams and the Iowa & Oklahoma Mining Company were overruled, and that those of the appellees were sustained. United States v. Abrams, 181 F. 847. As to the latter, the bill was dismissed, and the decree to that effect was affirmed by the circuit court of appeals, as already stated.
We have, then, the question of the validity of the lease and assignments described in paragraphs (3), (7), and (8).
The Quapaws are still under national tutelage. The government maintains an agency, and, pursuant to the treaty of May 13, 1833, 7 Stat. 424, an annual appropriation is made for education and other assistance (37 Stat. 530). In 1893, the Quapaw National Council made provision for allotments in severalty which were to be subject to the action of Congress, and in the Act of ratification of 1895 Congress imposed the restriction upon alienation which has been quoted. The guardianship of the United States continues, notwithstanding the citizenship conferred upon the allottees (United States v. Celestine, 215 U. S. 278, 215 U. S. 291; Tiger v. Western Investment Co., 221 U. S. 286, 221 U. S. 315-316; Hallowell v. United States, 221 U. S. 317, 221 U. S. 324; United States v. Sandoval, 231 U.S.
28, 231 U. S. 48); and, where Congress has imposed restrictions upon the alienation of an allotment, the United States has capacity to sue for the purpose of setting aside conveyances or contracts by which these restrictions have been transgressed. Heckman v. United States, 224 U. S. 413; Mullen v. United States, 224 U. S. 448, 224 U. S. 451; Bowling v. United States, 233 U. S. 528, 233 U. S. 534.
1. We may first consider the assignments of rents and royalties. Under his patent, the allottee took an estate in fee, subject to the limitation that the land should be "inalienable for the period of twenty-five years" from date. This restriction bound the land for the time stated, whether in the hands of the allottee or his heirs. Bowling v. United States, supra. It put it beyond the power of him or of them to alienate the land or any interest therein in any manner except as permitted by the Acts of 1896 and 1897. See Taylor v. Parker, 235 U. S. 42. The comprehensiveness of the restriction was modified only by the power to lease, and while the allottee could make leases, as provided in these acts, they gave him no power to dispose of his interest in the land subject to the lease, or of any part of it. The rents and royalties were profit issuing out of the land. When they accrued, they became personal property, but rents and royalties to accrue were a part of the estate remaining in the lessor. As such, they would pass to his heirs, and not to his personal representatives. 1 Washburn on Real Property *337; Wright v. Williams, 5 Cow. 501. It is true that the owner of the reversion, when unrestricted in his right to convey, may sever the rent and grant it separately, but this is by virtue of his freedom to deal with the estate in the land. 2 Bl.Com. *176.
of the market value of the minerals, and thus that the assignment was of these moneys, but the fact that rent is to be paid in money does not make it any the less a profit issuing out of the land. The further argument is made that the power to lease should be construed as implying the power to dispose of the rents to accrue. This is wholly untenable. The one is in no way involved in the other; the complete exercise of the authority which the statute confers would still leave the rents and royalties to accrue as part of the estate remaining in the lessor. It was the intent of Congress that the allottees, during the period of restriction, should be secure in their actual enjoyment of their interest in the land. Heckman v. United States, supra. The restriction was removed only to the extent specified; otherwise, the prohibition against alienation remained absolute.
The first assignment of royalties, as above described (paragraph (7)), was made on August 16, 1902, of rents to accrue under the first lease, of January 11, 1902, which was to run for ten years. The second assignment, made in February, 1906 (paragraph (8)) was, in substance, of "one and one-quarter percent of the whole product on said lands" until January 11, 1912. Both were assignments of interests which pertained to the reversion, and both must be held to be invalid under the statute.
royalties which were reserved in the first lease at a time when the property had not been prospected. The practice, to say the least, is an abnormal one, and it requires no extended discussion to show that it would facilitate abuses in dealing with ignorant and inexperienced Indians. It is urged, however, that the manner of dealing with the Indians, in gradually releasing them from guardianship and preparing them for complete independence, is for Congress to determine; that Congress has in this case authorized a lease for ten years; that this was a lease for ten years, and no longer, and hence was within the authority, and that, however wise it might have been to prohibit "overlapping leases," Congress did not so provide.
We are of the opinion that this is too short a view. The question is as to the scope of the authority given by Congress -- that is, whether it did not extend simply to leases in possession, and should be taken not to include "leases in reversion." The allottee, as we have seen, is under an absolute restriction with respect to his reversion for a period of twenty-five years from the date of his patent. In the light of this restriction, and of the governmental policy which induced it, there is sound reason for construing the power as not authorizing anything more than a lease in possession, as well understood in the law. At common law, as the government points out, it was the established doctrine that a tenant for life, with a general power to make leases, could make only leases in possession, and not leases in reversion or in futuro. He was not authorized by such a power to make a lease to commence "after the determination of a lease in being." Such a lease was deemed to be "reversionary." Countess of Sussex v. Wroth, Cro.Eliz. 5; Shecomb v. Hawkins, Cro. Jac.318, Yelv. 222; Winter v. Loveday, 1 Comyns 37; Sugden, Powers, p. 749; 4 Greenleaf's Cruise's Dig. 165, 166; Taussig v. Reel, 134 Mo. 530, 544-547; Woodfall on Landlord and Tenant (19th ed.), 239, 244-245.
power to lease for a certain number of years without saying either in possession or reversion authorizes only a lease in possession, and not in futuro."
Such a power receives the same construction as a power to make leases in possession. What is expressed in the one is understood in the other. Shaw v. Summers, 3 Moore C.P. 196. This is not to say that an agreement for a new lease at a fair rental, made shortly before the expiration of an existing lease, would not be sustained in equity. See Dowell v. Dew, 1 You. & Coll. 345.
We are unable to see that the allottee under the power in question has any better position. The protection accorded by Congress, through the restriction upon the alienation of the allottee's estate, modified only by the power to lease as specified, was not less complete, because the limitation was not in the interest of a remainderman, but was for the benefit of the allottee himself as a ward of the Nation. The Act of 1897 gives him authority "to lease" for a term not exceeding the stated limit. Taking the words in their natural sense, they authorize leases in possession, and nothing more. T he language does not compel the recognition of leases which are to take effect in possession many years after their execution, if, indeed, it could be assumed that they were not intended to be concurrent. Such leases certainly violate the spirit of the statute, and according to the analogies of the law, they violate its letter.
of the reversion, or of any interest therein, was clearly prohibited by the restriction.
From every point of view, we must conclude that a lease for ten years, made in 1905, subject to an existing lease for ten years of the same property which, by its terms, was to run until 1912, was unauthorized and void.
As the United States was entitled to maintain the suit to cancel these instruments as transgressing the statutory restriction, it is unnecessary to consider the question whether, in the absence of such a violation, the government would have capacity to sue to redress alleged frauds committed against allottees.

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