Kumaraswami Sastri, J.
1. Plaintiff is the appellant. He filed a suit for a declaration that the Khanda Bhogiam deed executed by his adoptive father in respect of the lands mentioned in the plaint which are archaka service inam is invalid and for possession of the properties. His case was that the lands are archaka service inam lands granted to his ancestors for the purpose of doing service in Tirumalai Tirupathi Devasthanam, that, on the death of his adoptive father, the plaintiff succeeded to the hereditary office, that as archaka of the temple he is entitled to hold the lands free from any encumbrance, and that his adoptive father purporting to act for himself and as guardian of the plaintiff executed the Khanda Bhogiam deed, dated the 21st of February, 1913, whereby the 1st defendant was put in possession of the properties for a term of 30 years in consideration of a sum of Rs. 8,225 alleged to have been paid to the father. The plaintiff also states that there was no consideration for the deed, that the debts are not true and binding on him, that the deed is further invalid as having been taken from the plaintiff's father who was an old and orthodox person of weak mind, ignorant of worldly affairs and completely under the' influence of the 1st defendant, that the property being service inam is not alienable and that the document even if supported by consideration will not be valid beyond the lifetime of the holder of the office. The defence was that the alienation was valid and supported by consideration, that the lands comprised in the deed are alienable and that the lease deed is valid and binding. It is also alleged that the plaintiff with full knowledge ratified the lease after the death of his father and that he is estopped from disputing its validity. The Subordinate Judge dismissed the plaintiff's suit. He held that the consideration mentioned in the document was paid, that there was no undue influence or fraud in the matter, that, though the lands are inam lands, there was a custom of alienability, and that even apart from any such custom the lease of the lands is valid and binding and it is not an alienation prohibited by law. The plaintiff appeals.
2. It is not disputed that the lands in question are lands granted as inam to the person who holds the office of archaka. It is clear from Ex. B, extract from the Inam Register, Exs. C and E) as well as Ex. A that service was to be rendered. Exs. C and D, which are as far back as 1822, prohibit alienation even by lease but it is doubtful whether these orders would in law render leases invalid in the absence of anything in the grant and as a matter of fact it is not disputed that there have been several dealings with this property by way of Ijar or lease. Ex. I is the Khanda Bhogiam deed which is impeached. It is dated the 21st February, 1913. Its genuineness is not disputed, It recites that the amount due by the plaintiff's father was Rs. 8,225 and that he was unable to pay the amount and has no other income except the income got from the village described in the schedule, possession was delivered of the Inam village for a period of 30 years from fasli 1323 to fasli 1353. This document refers to a previous document of the 12th of April, 1910. As regards the enjoyment and payment of rent the deed runs as follows:
Therefore you shall enjoy the said village from this time forwards and you yourself shall discharge the above-mentioned debts. From this time forwards you yourself shall collect all the income that has been collected by us in the said village. We have nothing to do with the profit and loss occurring in the same. You shall have all the rights held by us in the said village for this Khanda Bhogiam period of 30 years for collecting arrears from the ryots in the said village. You shall pay the kists payable to the Sircar (Government) on the said village and obtain receipts. You should give the receipts to us after (he Khanda Bhogiam period, that is when the said village was delivered possession to us. If you fail to pay the said kists according to instalments you should pay the loss sustained by us thereby. For the said period of 30 years you shall pay to us at the rate of Rs. 120 (one hundred and twenty rupees) in cash and 24 (twenty-four) putties of paddy either Pattadu Sambavu or Garika Sannam worth about Rs. 144 every year and should be given in two instalments on the 30th of Karthika month for Karu and on the 30th of Chitrai, Vaisaka produce in every year. If you fail to pay in the said manner you should pay the same to us on demand with interest thereon at the rate of one per cent. per mensem from the date of default.
3. It then goes on providing for the supply of straw, etc. it says that accounts should be maintained according to those maintained by the lessor which should be delivered after the Khanda Bhogiam period is over and that the repairs should be executed to the channels by the lessee.
4. The first question is whether this document is a lease or mortgage. Having regard to the terms of the document, i think it is a lease. It satisfies all the requirements of a lease as defined in the Transfer of Property Act. A premium is taken, which premium is to be worked off by the enjoyment of the produce for 30 years and a portion of the produce is to be given to the executants of the document. It is sometimes difficult to draw the line between a mortgage with possession and a lease where a premium is recovered by the lessor, but considering the documents as a whole I think it is a lease.
5. In Nidha Sah v. Murli Dhar (1902) LR 30 IA 54 : ILR 25 All 115 there was a document which was said to be a mortgage with possession for a period of 14 years under which it was provided that on the expiration of the term the mortgagor shall come into possession of the mortgaged properties without settlement of accounts and that on the expiration of the term the mortgagee shall have no power whatever in respect of the estate which after the expiration of the term of the mortgage deed shall be returned to the mortgagor without his paying the mortgage money secured under the document. It was held by their Lordships of the Privy Council that it was merely a lease. Sir John Bonser who delivered the judgment of their Lordships observed:
This instrument, though it is called a mortgage, and though it will be convenient to follow the nomenclature used in the document itself and in the pleadings and judgments in the Courts below, is not a mortgage in any proper sense of the word. It is not a security for the payment of any money or for the performance of any engagement. No accounts were to be rendered or required. There was no provision for redemption, express or implied. It was simply a grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances.
6. These remarks apply to the present case. There is no liability to account for the rents and profits, nor is there any question of redemption on payment of any money. All that the document requires is that an account should be kept as regards the payment of the kist and of the various expenses. So far as consideration is concerned, there can be no doubt that the consideration as set out in the document was due and payable and as regards the plea of undue influence it has not been made out. it is not seriously disputed and argued before us in appeal that the document is invalid for any other reason but the inalienability of the land purported to be dealt with by the document Ex. I, as it was land granted for temple service. The only question therefore is whether that deed which is in my opinion a lease is invalid.
7. It has now been settled by this Court that alienation of temple service lands by sale, gift or mortgage, are invalid. 1 need only refer to the decision of the Full Bench in Anjarneyulu v. Sri Venugopala Rice Mill, Ltd. ILR (1922) M 620 : 42 MLJ. 477, where it was held that lands held on Swasthivachaka service tenure are not subject to attachment in execution of a decree and that the sale of such lands is opposed to public policy. All the earlier decisions are referred to and discussed.
8. In Venkata Rao v. Bapayya (1926) 24 LW 674 it was held by Devadoss and Wallace, JJ., that the alienation of Swasthivachakam inam lands is invalid and that the fact that the alienation was in favour of a member of the family does not validate the transfer.
9. It is argued by Mr. Muthukrishna Aiyar for the respondents that these decisions only apply to sales, gifts or mortgages and not leases, and that consequently a lease could be made. In dealing with this question we have to see the nature of the transaction rather than the form. A lease for 99 years or for a long term in consideration of a premium paid down is as much an alienation as a sale or mortgage and I do not think that the mere use of the word 'lease' or the fact that a long term is fixed would, having regard to the mischief which is sought to be guarded against by holding that service inam lands are not alienable, make the lease valid. The real question is whether the transaction in effect places the income from the lands beyond the disposal of the holder of the office and prevents him from enjoying the emoluments which were intended to go to the holder of the office in order to enable him to discharge his duties properly.
10. In Rama Varma Tambaran v. Raman Nayar ILR (1882) M 89 there was a kanom for 96 years and Innes and Muttuswami Aiyar, JJ., held that the kanom was invalid. The learned Judges observed:
There seems to be no real distinction between the mischief of such a transfer in perpetuity and a transfer for the long period of 96 years.
11. In Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi ILR (1917) 40 M 709 : 1917 33 MLJ 1 their Lordships of the Privy Council observed that there was no difference in principle between the grant of a lease in perpetuity of debottar lands at a fixed rent and an absolute alienation in perpetuity of the same kind of land in consideration of a premium and set aside a permanent lease at a fixed rent on payment of a premium of temple lands.
12. In Rama Reddi v. Ranga Dasan (1925) 50 MLJ 589 Devadoss, J., observed:
A permanent lease is as much an alienation as a sale. The mere fact that rent is payable by the permanent lessee does not make a permanent lease any the less an alienation than a sale.
13. In Madhavrao Waman v. Raghunath Venkatesh ILR (1923) B 798 : 47 MLJ 248 their Lordships of the Privy Council were of opinion that the grant of a permanent lease of service watan lands would undoubtedly be an alienation within the Bombay Regulation which prohibited watandars without the sanction of the Government to sell, mortgage or otherwise alienate or assign any watan.
14. It is thus clear that permanent leases or leases for so long a period as would practically amount to an alienation will be invalid as against the successor in office who will be entitled to the rents and other emoluments arising out of the land which goes with the office.
15. When the lease in question is not of this character, I think that it is not absolutely void but only voidable at the instance of the successor in office. It cannot be said that the holder of the office is bound to cultivate the lands personally and very often leasing the land is the usual or beneficial mode of enjoyment, nor will it be possible to fix any hard and fast rule in considering such leases. Where a premium is taken one test will be whether the rent paid is sufficient to maintain the holder of that office in such a way as not to interfere with the due performance of the duties attached to the office.
16. Having regard to the terms of the lease deed in question I think it is not absolutely void But that it is only voidable at the option of the plaintiff. The holder of the lands attached to an office has by the very nature of his tenure no power to lease the property so as to enure beyond his life-time and the fact that the office is hereditary makes no difference.
17. The lease in my opinion being voidable, the next question is whether the plaintiff on succeeding to the office elected to avoid it. On this point there can be little doubt that the plaintiff, after he attained majority, not only received rent but also filed a suit to recover the rent reserved. I agree with the Subordinate Judge in thinking that the plaintiff is bound by the lease as he did not repudiate it when he assumed office.
18. As regards the custom of alienation which the Sub-Judge thinks is made out it is difficult to see how there can be a custom which is opposed to the law or how illegal alienations, if repeated, can convert inalienable into alienable property. There is in this case no question of any bona fide purchaser or mortgagee. Nor are we concerned with the right of the trustees of the temple.
19. The appeal fails and is dismissed, but under the circumstances without costs.
20. I agree and I have nothing to add.