1. The plaintiff's sued to redeem a mortgage. It was alleged that the deceased elder brother of the plaintiff usufructually mortgaged the suit land to the defendant for Rs. 50 on 29th July 1903 under Ex. 1. The defendant while admitting the mortgage pleaded that he became the absolute owner of the property by purchase on 29th October 1906, from plaintiffs 2 and 3 and that his possession subsequent to 1906 was as an absolute owner; and though the sale-deed Ex. 2 of 1906 was unregistered, his possession since 1906 was as absolute owner and that he had acquired absolute title by adverse possession for more than 12 years. The plaintiff's impugned Ex. 2 as a forged document, and the. District Munsif found that Ex. 2 was not genuine and accordingly decreed redemption. On appeal by the defendant the learned District Judge came to the conclusion on the evidence that Ex. 2 was genuine, that it was executed by plaintiff 2 and attested by plaintiff 3. Holding that Ex. 2 was genuine he reversed the District Munsif's decision and dismissed the suit observing as follows:

I cannot bring myself to believe that Ex.2 was a forgery. I am satisfied the land was on that date sold to defendant. I find on issue '2 that the sale is true and that though the sale deed conveyed no title (being unregistered) I find under issue 3 that the possession of defendant was adverse since the date of Ex. 2 and the suit is therefore barred by limitation.

2. The plaintiffs have preferred this second appeal to the High Court and on their behalf it was contended by Mr. M.S. Venkatarama Ayyar, the learned vakil for the appellant, that accepting Ex. 2 to be genuine, the defendant's possession having commenced lawfully as a usufructuary mortgagee under the plaintiff's family and the sale-deed, Ex. 2, being admittedly inadmissible to prove the sale, the defendant's possession should all along be considered to be that of a mortgagee, since a mortgagee in possession could not change the nature of his possession as mortgagee, nor convert it into adverse possession against the mortgagor. He relied on the decision of Miller and Sadasiva Iyer, JJ. in Ariya Puthira v. Muthukumaraswami [1912] 37 Mad 423 to the effect that the unregistered sale-deed, Ex. 2, could not be referred to, to prove that the defendant's possession was as vendee. He further contended that the mortgagor was entitled to redeem at any time within 60 years under Article 148, Lim. Act and that the plaintiffs ought to have been given a decree for redemption.

3. On behalf of the respondent Mr. Seshagiri Sastri contended that the sale-deed Ex. 2, though unregistered, was admissible to show the nature of the subsequent possession held by the respondent. The learned vakil relied on the decision of the Privy Council in Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 and of the decision of the Full Bench of this Court in llama Sahu v. Gowro Ratho A.I.R. 1921 Mad. 337, in support of his position. He also contended that the decision in Ariya Puthira v. Muthukumaraswami [1912] 37 Mad 423, is no longer law having been dissented from subsequently in this Court, and he relied on the decision of Sundara Ayyar and Sadasiva Ayyar, JJ. in Usuvian Khan v. Dasanna [1912] 37 Mad. 545, followed by Ayling and Odgers, JJ., in Kandaswami Pillai v. Chinnabha A.I.R. 1921 Mad. 82, as showing that the subsequent sale though invalid may be proved to show the nature of the possession subsequently held by the defendant.

4. In addition to the cases mentioned above reference may also be made to the following cases which support the above position. Ata Muhammad v. Shankar Das A.I.R. 1925 Lah. 491 (unregistered lease deed); Janki Kuer v. Birj Bhikhan Ojah A.I.R. 1924 Patna 641 (unregistered lease deed); Quadar Baksh v. Mangha Mal A.I.R. 1923 Lah. 495 (unregistered sale-deed); Jhamphu v. Kutramani [1917] 39 All. 696 (unregistered relinquishment deed); Jagannath v. Chandi Bibi A.I.R. 1921 Cal. 647, Mookerjee and Buck-land, JJ. (unregistered deed of gift); Thakore Fatesinghji v. Bamanji A. Dalal [1903] 27 Bom. 515 (unregistered lease); Venkatachari v. Rangaswami Ayyangar [1909] 6 M.L.T. 192, Musigadu v. M. Gopala Reddy A.I.R. 1921 Mad. 213 and Abobilachariar v. Thulasiammal A.I.R. 1927 Mad. 830.

5. Mookerjee, J. at p. 436 [of 34 C.L.J.,] Jagannath v. Chandi Bibi A.I.R. 1921 Cal. 647 while holding that a deed of gift if unregistered could not be received as evidence of any transaction affecting immovable property, observed as follows:

It was however admissible in evidence for a collateral purpose namely to explain why Lakshmi Bibi received the income.

6. In his commentary on the Registration Act Mr. Mulla remarks as follows:

The decision of the Privy Council in Jeeva rathnammal's case, is an authority for the proposition that a document which requires registration under the Transfer of Property Act, but is not registered is nevertheless admissible to prove the character of the transferee's possession. Though Section 49 was cited in argument in that case, there is no reference to it in the judgment of their Lordships.

7. On the first question I feel pressed by these decisions and I think therefore that I am bound to hold that the unregistered sale-deed, Ex. 2 is admissible to prove the nature of the subsequent possession of the defendant. This is what the Privy Council say in Varada Pillai v. Jeevarathnammal at p. 251 [of 43 Mad.] Although the petitions of 1895 and the change of names made in the register in consequence of those petitions are not admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Doraisani. In other words, although the petitions and order do not amount to a gift of the land they lead to the inference that the subsequent receipt of the rents by Doraisani was a receipt in the character of donee and owner of the land and therefore in her own right and not as trustee or manager for her mother and aunt.

8. Similarly, in Rama Sahu v. Gouro Ratho, the Full Bench held that an unregistered lease is admissible in evidence to prove the nature of the possession under that instrument. The first point has accordingly to be decided against the appellant.

9. Coming to the second point, no doubt, under ordinary circumstances a mortgagor has a period of 60 years within which he could sue to redeem. As observed by the Privy Council in Khiarajmal v. Daim [1905] 32 Cal. 296 at p. 312.

The question at issue is exclusively one between mortgagor and mortgagee. As between them neither exclusive possession by the mortgagee for any length of time short of the statutory period of 60 years nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem.

10. It is clear that no unilateral declaration by the mortgagee alone that he is the owner of the properties would be effective to convert the character of the mortgagee's possession from that of a mortgagee to that of an absolute owner. But it does not follow that the equity of redemption could not be lost to the mortgagors by reason of subsequent acts on their part. The Privy Council expressly say that while mere acquiescence by the mortgagors would not be enough, acts amounting to a release of the equity of redemption would be a bar or defence to a suit for redemption. Section 60, T.P. Act, expressly enacts that mortgagors have got the right to redeem unless such right had been extinguished by act of the parties, or by order of a Court. It is thus clear that such a right could be extinguished by act of the parties subsequent to the mortgage. If the subsequent acts are evidenced by proper documents, then the equity of redemption would be affected directly on the execution of these documents. If, however, the documents are inadmissible, for want of registration, or in case the subsequent transaction between the mortgagor and the mortgagee be not evidenced by any writing at all but simply be oral then the result would be that the mortgagor's equity of redemption would not be put an end to at once but the subsequent possession on the part of the mortgagee would not be that of a mortgagee but that of an absolute owner. As against parties entering into such transactions the mortgagee would acquire an absolute title to the property after the expiry of 12 years from the date of those transactions. This position has been clearly laid down by Sundara Ayyar and Siadasiva Ayyar, JJ. in Usuman Khan v. Dasanna. That case is practically on all fours with the present in so far as the present contention is concerned. At p. 547 the learned Judges say as follows:

We shall assume that possession so taken would be hold by him as mortgagee. But assuming all this, what was there to prevent both the mortgagor and the mortgagee from agreeing that the mortgagee should, from a certain date, hold possession as owner? Such an agreement may not be valid to confer immediate title on the mortgagee but as far as we are aware there is no principle of law which prevents both parties from agreeing what the character of the possession to be held by the mortgagee should be from a certain date. It is quite true that a mortgagee cannot by mere assertion of his own or by any unilateral act of his convert his possession as mortgages into possession as absolute owner. That is a principle in favour of the mortgagor which prevents the mortgagee from altering the legal character of his possession by his own act or assertion. That has been laid down in several cases, one of the earliest of which is Ali Muhammad v. Lalta Baksh [1876] 1 All. 655. But they have no bearing on the question of the effect of an agreement between both [parties that the mortgagee should hold possession as owner and not as mortgagee.

11. Sadasiva Ayyar, J. was a party to that decision. No doubt, the decision in Ariyaputhira v. Muthukumaraswami was by Sadasiva Ayyar, J.,, also and by Miller, J., and that case Ariyaputhria v. Muthukumaraswami, is in favour of the appellant's contention but the same has been dissented from in Kandaswami Pillai v. Chhinnabha by Ayling and Odgers, JJ. who expressly followed the decision in Usuman Khan v. N. Dasanna. The decision in Letters Patent Appeal No. 207 of 1915 (unreported) is also relied on by the learned Judges in Kandaswami Filial v. Chinnabha, as supporting the view taken by them. The question also is discussed fully by Napier and Krishnan, JJ., in Musigadu v. M. Gopala Reddy where it was held that a usufructuary mortgagee to whom the property had been sold without a registered instrument and who held possession of the property for over 12 years from the date of sale, acquired a title to the property by adverse possession even if the sale failed. Having regard to the decision in Ariyaputhra v. Muthukumaraswami and to the decision in an unreported case (Appeal No. 40 of 1913) it seems to have been suggested to the learned Judges that the question should be referred for decision by a Full Bench. With reference to this question Krishnan J., observed as follows:

I am inclined at one stage to have the question settled by a Full Bench but in view of the Letters Patent Appeal which was decided by a Bench of three Judges of this Court, I think it unnecessary to do so as we are bound to follow that ruling in preference to the other decision.

12. This is the view that has been adopted by the Allahabad High Court in Khedu Rai v. Sheo Parsan Rai [1917] 39 All. 423 and this view would seem also to receive support from the decision of the Privy Council in Mahomad Musa v. Aghora Kumar Ganguli A.I.R. 1914 P.C. 27.

13. Having regard to the decisions of this Court noticed above, it seems to me that the second contention raised by the learned, vakil for the appellant is unsustainable. In Letters Patent Appeal No. 207 of 1915 the learned Judges (Abdul Rahim, Offg. C.J. and Seshagiri Ayyar, and Burn, JJ.) remarked as follows:

It is argued that since the oral sale is found to be invalid the value of the property being more than Us. 100 the possession of the mortgagee should not be hold to be adverse. But the question whether possession is adverse or not depends upon the intention or animus of the parties. In the circumstances of this case whether the defendants entered upon the possession of the property at first under the clause in the deed of mortgage or not, their possession certainly since the date of the alleged oral sale was in their own absolute title. The principle of law that a mortgagee who enters into possession in his capacity as such cannot acquire any right by adverse possession against his mortgagor is not applicable to a case where the possession of the mortgagee was treated by the mortgagor himself as being in absolute right and not as mortgagee.

14. The learned Judges differed from the opinion of Spencer, J., and agreed with Phillips, J.

15. But on the special facts of this case, I think the finding of the learned District Judge already quoted namely:

that the possession of the defendant was adverse since the date of Ex. 2 and, therefore, the suit is barred by limitation could not be accepted in its entirety. Ex. 2 could be taken to evidence the acts of plaintiff 2 who executed it and of plaintiff 3 who attested it. Prima facie it could not affect the rights of the first plaintiff; whether the plaintiffs 2 and 3 were entitled to represent plaintiff 1 also, or whether plaintiff 1 was divided from the other plaintiff's at the date of Ex. 2 are matters that would be relevant to the question. In the absence of a specific finding that the possession of the defendant was adverse to plaintiff 1 also if the defendant could show sufficient evidence to that effect, we should hold that the rights of the first plaintiff could 'not be barred by limitation. In this connexion I may refer to the decision in Byari v. Puthanna (19) 14 Mad. at p. 43 and to the observations in Usman Khan v. Dasanna. It was there pointed out by the learned Judges that if the persons who executed the conveyance and those who consented to it had severable interest in the mortgaged property the interests of such persons would be bound and would pass to the mortgagee as the result of adverse possession by him. In the case of property belonging to a Malabar tarwad of Aliyansanthana family the members have no severabel interests and consequently no legal right passes to the mortgagee by reason of a transfer effected by some members only of a tarwad. In the case of Mitakshara Hindu family in Madras coparceners have severable interests and so the mortgagee would acquire the shares of the transferrers. The lower appellate Court will accordingly consider the question of adverse possession raised in issue 3 in the light of the above observations so far as the first plaintiff's rights are concerned; and in case the Court should come to the conclusion that the first plaintiff's rights are not barred, it should give him appropriate relief that he may be entitled to; Section 60, p. 4, T.P. Act, may also be referred to if necessary.

16. The case is therefore remitted to the lower appellate Court for fresh consideration and decision so far as plaintiff l's rights are concerned. As the appellants have substantially failed in their contention we direct that they should pay half the costs of the respondent in the second appeal. The costs of the rehearing before the District Judge will be provided by him. The decree of the lower appellate Court is reversed so far as plaintiff 1 is concerned, and the appeal remanded to the lower appellate Court for disposal in the light of the observations contained in this judgment.

Jackson, J.

17. I agree I should not have considered Ex. 2 by itself evidence of a change in possession; but as one of the incidents of the events relied upon [to use the language of Walsh, J. in Jhamplu v. Kutramani [1917] 39 All. 696] as collateral evidence and in my opinion collateral evidence of hardly any significance, it may be read with sworn testimony of the defendant,, and with Ex. 4, and then, on this question of fact, I cannot positively say that the lower appellate Court has erred.