Sadasiva Aiyar, J.
1. I am not satisfied that the two documents A and B constituted a usufructuary mortgage as contended for by the appellants. Following the Full Bench decisions in reference under Stamp Act, Section 46, Srinivasayyar v. Lahkshmamma I.L.R. (1883) M. 203 I hold that as a definite sum is stated as rent due periodically to the father of defendants 1 and 2 and as the plaintiffs could under no circumstances be entitled to bring the properties to sale for recovery of the money advanced, the documents ate instruments creating a lease and creating an ordinary simple money debt.
2. But a new question of law was allowed to be taken and argued by the appellants and after hearing both sides I think that that question should be decided in the appellant's favour. The plaint lands form the emoluments of the village blacksmith's office and cannot be detached from that office after Madras Act III of 1895 came into force in October 1895. They had not become so detached from the office by 12 year's adverse possession in plaintiffs.
3. The reasons are: (1) Only eleven and odd years bad elapsed between the date of Exhibit A and the passing of Act III of 1895. (2) The older Regulation 6 of 1831 could not be construed as having prohibited alienation by leases, the terms of that regulation in respect of the prohibition of alienation not being materially different from the corresponding terms of Act III of 1895 which were construed in Kshetrabaro Bissoyi, v. Sobhanapuram Hari Kristna Naidu I.L.R. (1909) M. 340 : 20 M.L.J. 417 as not prohibiting alienation by way of leases. (If leases were allowed plaintiff's possession as lessees from the holder of the office could not be possession, adverse to the holder of the office.)
4. As the plaint lands could have been recovered by the defendants 1 and 2 on their father's death (which took place about 6 months before suit) by a Regulation suit against the plaintiffs brought under Section 13 of Act III of 1895 if the plaintiffs had continued in possession after the death of the father of defendants 1 and 2, the 1st and 2nd defendants' possession of the lands which possession they were able to obtain without being put to the necessity of bringing such a suit could not be wrongful or illegal possession. The lease by their father to the plaintiffs (unless perhaps it was a lease for the reasonable or customary term allowed in the usual course of agricultural husbandry) could not be valid beyond his life time as his tenure of the office and his own right to enjoy the lands (which right alone he could alienate by lease under Section 8 of the Transfer of Property Act) came to an end at his death, (See also Richard v. Graham (1910) 1 Ch. 722 and (Muthusami Iyer v. Sreemethanithi Swamiyar : (1913)25MLJ393 .
5. I would therefore set aside the District Judge's decree granting the plaintiffs' claim for possession of the lands and restore that of the District Munsif which gave only a money decree against the defendants 1 and 2 to the extent of the assets left by their father. The plaintiff will also get till recovery of the decreed amount, interest on the same at 6 per cent. from the date of the Munsif's decree besides the interest allowed by the District Munsif till the date of the said decree. The parties will bear their respective costs throughout.
6. Defendants 1 and 2 who are holders of the office of blacksmith are admittedly in possession of the suit lands which are attached as Inam to that office in the village of Chakarajivemula. The plaintiffs are not entitled to recover possession from defendants unless they can show title in themselves.
7. They rely on a lease Exhibit which was executed simultaneously with a deed of agreement Exhibit B, by which the father of defendants 1 and 2 agreed that the debt of Rs. 388-2-0 which he owed in 1884 to plaintiffs should be discharged out of the rent of the service Inam lands. It contains a clause. ' If any impediment is caused in any year in the matter of your enjoying the said lands in that manner, I shall pay to you the interest for the total amount standing due up to that year at the rate of rupee one per cent. per mensem from the date of the execution of this deed and the principal on demand and take back my deed.'
8. Upon these documents the District Munsif held that plaintiffs were entitled only to recover the balance of the debt due at the death of the father of defendants 1 and 2 with interest from the assets in the hands of defendants.
9. The Subordinate Judge reversed the District Munsif's decree and gave plaintiffs a decree for possession of the land.
10. I am of opinion that the documents do not give the plaintiffs any right to such relief as against the present office holders who are now rightfully in possession of the land, but only gives a right to recover money under the above quoted clause. Under Section 13 of Act III of 1895 they might, if dispossessed, sue before the Collector for recovery of enjoyment of the emoluments of the office.
11. Respondents seek to support the lower appellate court's decree on the ground that they have acquired a permanent right by 12 years adverse possession. But it is clear that the possession they had under the last office holders under this lease was permissive, and will not enure against subsequent holders of the office as a permanent alienation would.
12. I agree that this appeal must be allowed and the District Munsif's decree restored without costs with the addition of interest till date of realization.