KAMMARA PEDA SUBBAYYA Vs. KARARHA CHENNAPPA

JUDGEMENT

(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 (1883) I.L.R. 7 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, (1909) I.L.R. 33 M. 340 : S.C. 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.)