John Beaumont, Kt., C.J.
1. This is a second appeal from a decision of the Assistant Judge of Bijapur, and the question involved is as to the construction of a rent-note, dated December 4, 1879, by which the predecessor of the plaintiffs rented a lease of certain property to Basappa, the predecessor-in-title of the defendants. Basappa died prior to 1904, and the defendants have always remained in possession, and have paid no rent since the death of Basappa. Therefore, unless the lease created a permanent tenancy, the plaintiffs' title would be barred by adverse possession, because the possession of the defendants would become adverse on the death of Basappa. If the tenancy was a permanent one, the possession of the defendants would not become adverse until they disputed the plaintiffs' title, which was only a year or two before the suit was filed; so that, if the tenancy was permanent, limitation would not bar the defendants.
2. The document in question is in these terms :-
I, Basappa bin Irapanna hereby pass the rent-note in your favour in respect of a house (described therein) on condition of paying to you annual rent of Rs. 10. I shall go on paying the amount of rent and take a receipt from you every year. You should not evict me from possession of the house so long as you receive from me the said amount of rent. I will not give up possession though you evict me. In any year that I fail to pay the amount of annual rent I shall give up possession paying you the arrears of rent till that day without putting forward any excuse. I shall go on making repairs at my cost. I shall not ask you anything for the expenses in this behalf. You must never raise the rent (or assessment) beyond the agreed rent of Rs. 10 per year, I shall never pay you more than Rs. 10.
3. Both the lower Courts have held that the document created a tenancy for the lifetime of Basappa, and, therefore, the possession of the defendants became adverse to the present plaintiffs as from his death. It will be noticed that the document used throughout the first person singular; no words of limitation are used, and there is nothing to suggest that the parties contemplated the continued existence of the lease or tenancy after the death of Basappa. No doubt, in this country there is no settled system of conveyancing, and a permanent tenancy may be created without the use of any words of inheritance, although, if the intention be to create a permanent tenancy, one would expect to find a reference to heirs or successors; but, in my view, in order to constitute a permanent tenancy, the Court must be able to say from the terms of the doccument, which creates it, that the parties contemplated that the lease would continue after the time at which, according to its terms, it would normally expire, in this case after the death of Basappa.
4. But Mr. Datar on behalf of the appellants has relied strongly on a decision of this Court, which was not cited in either of the lower Courts, Bai Sona v. Bai Hiragavri. : (1926)28BOMLR552 The document which fell to be construed in that case was a rent-note, and was expressed, naturally in different terms to the rent-note in the present case, but I am bound to confess that the effect of the two notes seems to me to be very similar, and I do not find in the document in that case anything to show that the parties contemplated the existence of the tenancy after the death of the tenant. In that case, however, the Court held that a permanent tenancy was created. I cannot help thinking that it is unfortunate that that case was reported. It dealt with the construction of a particular document, and, in so far as any principle of law was purported to be laid down, the Court brushed aside, in a somewhat cavalier fashion, the earlier decision of this Court in Vaman Shripad v. Maki.1 Moreover both the District Judge and the appellate bench based their decisions on what seems to me to be a mistaken view of the effect of Section 108 (j) of the Transfer of Property Act. The learned District Judge referred to that sub-section, which merely makes the interest of a lessee transferable, and said :
It follows, therefore, in principle and it has been clearly ruled that the lessee's interest is also heritable in the absence of any contract or local custom to the contrary.
5. The learned Chief Justice in giving the judgment of this Court said (p. 553) :-
To my mind it is clear that a document of lease couched in these words creates a permanent lease, that is to say, the lessee is entitled to remain in possession as long as he pays the agreed rent, and the lease must enure for the benefit of his heirs under Section 108 (j) of the Transfer of Property Act.
I am quite unable to follow that proposition. The fact that a lessee's interest is made transferable does not mean that it is heritable. A tenancy for the life of the lessee is transferable, but is obviously not heritable; and, if upon the true construction of the document before the Court all that is created is a tenancy for the life of the lessee, there is nothing in Section 108(j) of the Transfer of Property Act which provides that that interest will enure for the benefit of the heirs of the lessee, so as to convert the tenancy for life into a permanent tenancy. As I have said, the document with which the Court was dealing in that case is differently worded from the document with which we have to deal, and I feel, no doubt, that both the lower Courts were right in this case in holding that the document created only a tenancy for the life of Basappa. That being so, it is clear that the possession of the defendants became adverse on the death of Basappa, and the plaintiffs' title was barred by limitation long before the filing of this suit.
6. The appeal, therefore, must be dismissed with costs.
7. I agree.