Wort, A.C.J:— This appeal is from the decision of a Judge of this Court affirming the decisions of the Courts below in an action for possession. The plaintiffs claimed to have deposited the mortgage monies in Court and sought in the action out of which this appeal arises to redeem the two mortgages of the year 1921. I assume that the plaintiffs had tendered the mortgage monies and they had been refused and therefore the monies had been deposited in Court. The question which was mooted in the trial Court and the first Court of Appeal was whether the defendant was a tenant as he contended or whether he was a mortgagee. Both the Courts below came to the conclusion that he was a mortgagee and that decision was affirmed by the Judge of this Court. It does not appear from the judgments that the admissibility of the two mortgage deeds came into question either in the trial Court or in the first Court of Appeal. Both the mortgages, one for Rs. 300 and the other for Rs. 100, being unregistered, there is now no dispute that they were inadmissible. Therefore the rights of the parties must be determined in the absence of these deeds. It is contended by Mr. Mazumdar on behalf of the plaintiff-respondents that the documents could be looked at for a collateral purpose, but the collateral purpose for which the learned advocate would desire the Court to look at the deeds is to prove the rights of the plaintiffs as mortgagors who, in the circumstances, would be entitled to redeem. It is impossible to suggest that was a collateral purpose. It is an attempt to prove a contract between the parties which the statute prohibits; of course I refer to Section 49 of the Registration Act.

2. Now, a very considerable discussion had taken place on the question whether the defendant has prescribed against the plaintiffs as a mortgagee and the contention of the learned advocate for the plaintiffs was that he has so prescribed. I can hardly see how that argument, if accepted, assists the plaintiffs as, if it is established that the defendant is a mortgagee, Mr. Mazumdar's clients (the plaintiffs) have still to prove that they are entitled to possession either having redeemed or being prepared to redeem the mortgages, and they can only prove that the time has come to entitle them to redeem by looking at the documents themselves for the purpose of ascertaining the terms. That cannot be. There is another aspect of the case and that is whether any evidence other than the documents themselves could be given for the purpose of establishing the plaintiffs' case. The clearest authority against a suggestion of that kind is to be found in 50 IA 77.1 That was a case of a mortgage not registered, one of the questions being whether the document which was sought to be proved in the case was mere evidence or memorandum of what had previously taken place or whether it was the contract between the parties. Having decided that the mortgage itself being unregistered was inadmissible and applying Section 91 of the Evidence Act, Lord Carson in delivering the judgment of their Lordships of the Privy Council came to the conclusion that no oral evidence could be given of the agreement between the parties. I have already stated and I would repeat that I do not see how any assistance is to be got by the plaintiffs from their attempt to establish that part of their argument before us that the defendant had prescribed as a mortgagee. I am aware of a number of cases in India which appear to have the effect of holding that a person can prescribe for a limited interest but I must say that I always fail to understand them, as both a tenancy and a mortgage are creatures of contract, and on fundamental principles I find it difficult to hold the view that a contract can be brought into existence by prescription. The view that I hold of the matter is best expressed by the Allahabad High Court in 3 All 24.2 Pearson, J. in delivering one of the judgments of the Full Bench of that Court made this observation:

In my opinion, in order to bar the suit under Article 144 of the Act of 1877 the adverse possession of the defendants must be of the same nature as that sought by the plaintiff.

3. Again I would add in my own words that ‘prescription’ after all is nothing more than limitation of the plaintiff's action; if limitation has run, it merely prevents the plaintiff from recovering the property which otherwise would be his. Now, there is one fact which appears to have been clearly established in this case and it is a fact of quite considerable importance. It has been proved that the defendant has been paying to the plaintiff Rs. 8 per annum. Of course in the Courts below it was contended by the defendant that was rent but the contention of the plaintiff was otherwise; but as I say, it has an important bearing upon this case. That being so, what are the facts? The plaintiff here seeks to recover possession. He cannot prove his contract as the documents are not registered; and, although strictly speaking the mortgages may not be void but at the same time they are improvable. Therefore it may very well be that the defendant could be treated as a trespasser from the time of the so-called mortgages of 1921. But in this case, having regard to the fact which I have mentioned, namely that he has been paying Rs. 8 per annum and which is being accepted by the plaintiff (and that fact is clear), it is impossible to hold that the defendant is a trespasser. The payment is evidence at least of the fact that the possession of the defendant by the plaintiff is permissive. In order to ascertain the nature of the payment the Courts below have looked at the documents. The documents being inadmissible, the Judges in the Courts below were in error in taking them into evidence for the purpose of ascertaining the nature of the possession and of the payment of Rs. 8. There being no evidence of the plaintiff's right to possession, the plaintiff's case fails. On the question whether the documents could be looked at for collateral purposes, one of the cases relied upon most strongly by the respondent was the case in 47 Mad 203;3 from an analysis of the judgment of the learned Judge to whom the case was referred on difference of opinion of the other Judges, it will be seen that with regard to a document which was inadmiasible by reason of non-registration, the learned Judge observed:

It is a too narrow reading of the plaint which is a bare narration of the facts, to construe it as seeking to redeem only a mortgage of 1902 and no other.

4. From that statement it will be seen that it was an action for redemption. The invalid mortgage was a mortgage of 1902. But the case was remanded not for the purpose of establishing the mortgage of 1902 but for enabling the plaintiff to establish any other mortgage that the evidence in the case would warrant. It is no authority for the contention put forward in this case. In these circumstances it seems to me that the action of the plaintiff should have failed. For these reasons, I would reverse the decision of the learned Judge of this Court and those of the Courts below and dismiss the plaintiff's suit with costa throughout.

Manohar Lall, J.:— The facts necessary for a proper decision of this case are now no longer in controversy. The respondents instituted the suit, giving rise to this appeal on 28th August 1933, to recover possession of the land in dispute from the defendant-appellant on the allegations that the defendant, who was let into possession by virtue of two unregistered mortgages for Rs. 100 and Rs. 300, respectively, bearing date 12th March 1921, has continued in possession as a mortgagee, that plaintiff 1 in 3932 deposited in Court the amount covered by the mortgages under the provisions of Section 83 of the Transfer of Property Act, because the defendant refused to receive the deposit outside Court, that notwithstanding the deposit the defendant refused to give up possession of the land with the result that plaintiff 1 settled the land in dispute with plaintiff 2 who also was not allowed to enter into possession, and hence this suit. It will be noticed that the suit is a suit in ejectment upon the allegation that the plaintiff has redeemed the mortgages of 1921 by the deposit made in 1932. The defendant in his plea asserted that he was not a mortgagee, because in his submission, the transaction of 12th March 1921 was in the nature of a lease, the amount of Rs. 400 was alleged to have been paid by him as salami for taking settlement of the disputed land and that since then, he had been paying the rent reserved in the two deeds at the rate of Rs. 8 a year as settled on that date. The proceedings in the Courts below took a curious turn. Both the documents of 1921 were admittedly inadmissible in evidence for want of registration, but nevertheless the defendant was allowed to produce them (as he had done before the survey authorities in 1924 when his possession was being recorded) and has actually exhibited them in the present suit in support of his contention that these conferred a tenancy right on him; indeed the Courts of fact have taken considerable pains to construe these documents and upon a construction thereof have come to the conclusion that the relationship into which the parties entered by the transaction of 1921 was that of a mortgagor and mortgagee. The Courts below ignored the now well-established proposition that no verbal agreement could confer upon this defendant any right at all because Section 59 of the Transfer of Property Act, expressly enacts that a mortgage of immovable property for Rs. 100 or upwards can only be made by a registered instrument and failed to see that directions in the Statute amounted to a statutory prohibition of the creation of such a right as claimed here by the plaintiffs in favour of the defendant otherwise than by a registered instrument, and omitted to notice that as no registered instrument admittedly existed, the defendant could have no such right as was sought to be claimed on his behalf by the plaintiffs, unless this could be established by some means operating independently and in violation of statute: see Ariff's case,4 below. It may be observed here that it is not the defendant who is setting his right as a mortgagee but it is the plaintiffs who insist that the defendant has acquired such a right by virtue of some equitable doctrine which was at one time the subject of serious controversy in the Indian Courts but which view has now been finally negatived by the decision of their Lordships of the Privy Council in 58 IA 91. Having embarked upon the construction of these inadmissible deeds, the Courts of fact found that although the defendant was paying the stipulated sum of Rs. 8 a year to the plaintiff on obtaining receipts therefor, he must be held to have been paying it in his character as a mortgagee on account of the stipulated haq hazri. The question then arises what are the respective rights of the parties in the present litigation? Has the plaintiff the right as put forward by him in his plaint, namely the right to recover possession of the lands in dispute after the redemption of the mortgages evidenced by these two unregistered deeds? These mortgages do not exist in the sense that the Courts of law are forbidden by statute to look into these documents in order to see what the terms of these mortgages are, and they are equally forbidden to investigate what is written on these pieces of paper. These papers are the only repository of the bargain which was made by the parties in 1921 and without them being used in evidence (which is forbidden by the statute) the plaintiff cannot establish his claim as a mortgagor and these documents being unregistered ought to have been rejected: see per Lord Carson in 50 IA 84.5 But, it was argued by the learned advocate for the respondent that it was the defendant himself who put in those documents as proof of his title. It is sufficient to point out that the plaintiff can only succeed on the proof of his title as a mortgagor and he cannot take any advantage of the attempted use which was sought to be made by the defence of these inadmissible documents.

5. I therefore ask myself the question how has the plaintiff come to prove that he is the mortgagor on the date of the action? The answer must be that there is no evidence whatsoever, which is admissible in law, from which I can come to a conclusion in favour of the plaintiff. The only evidence upon which reliance was placed by the learned advocate for the respondent was that in some way or other the defendant had been asserting himself as the mortgagee and therefore he must be taken to have prescribed as a mortgagee with, the result that the plaintiff, so it is argued, has acquired the character of a mortgagor by virtue of the prescription said to have been made by the defendant. This is a novel argument and finds no support in law nor in the case cited by the respondent which will be noticed hereafter. There is no issue in the case as to when the defendant began to prescribe and indeed the only evidence in the case on which some reliance could be placed was an entry in the Record of Bights of the year 1924. Apart from the fact that this entry merely records the possession of the defendant and nobody denies this in 1924, the entry at the very highest must be taken to have recorded the admission of the defendant as to the contents of the two deeds of the mortgage of 1921 and the opinion of the survey authorities as to the title of the defendant which they thought he possessed on considering the two inadmissible and unregistered deeds of mortgage which were produced before the officers by the defendant. If, as it was argued, the defendant must be taken to have prescribed his rights as a mortgagee from the date of this entry, it is enough to state that the period of 12 years from that starting point had not expired when the suit was instituted in 1938.

6. I would like to add that in my opinion no question of prescription arises in this case. The defendant never asserted this and the plaintiff never made out such a case either in the pleading or in the evidence. Indeed, this is a remarkable case where the plaintiff asserts that the defendant must be taken to have prescribed as a mortgagee when the defendant denies that he ever asserted anything of the kind but asserts on the contrary that he is a tenant of the plaintiff to whom he had been regularly paying Rs. 8 a year as rent. As already stated the entry in the Record of Rights was merely a statement by the survey authorities as to the view which they adopted of the two documents of the year 1921 which could not be looked into in order to determine the exact terms of the bargain which the parties had made for themselves. In this view I do not think it is necessary to consider whether the defendant can ever be held in law to be able to prescribe against a true owner his rights as a mortgagee, but if it were necessary to decide this matter, I would have respectfully agreed with the observations which have fallen from my Lord the Chief Justice on this point in the judgment just delivered by him. I cannot understand how by a mere oral assertion a person can acquire rights as against a true owner as a mortgagee; it is necessary to have a contract to that effect either oral or unregistered, where the amount advanced is below Rs. 100, and necessarily a registered document where the money advanced is above Rs. 100. If the mere oral declaration of the parties would be held sufficient in law to establish the relationship of mortgagor and mortgagee, in the latter case, in my opinion, it would be stultifying and openly violating the Statute. The reason for the rule is that the title must be based either upon a contract, express or implied, or upon some statement of fact grounding an estoppel: per Lord Russell of Killowen in 58 IA 91.

7. There is no question of estoppel in the present case and the title can only be acquired by a contract in writing and registered which is not to be found in the present case. In the result, the position comes to this that the plaintiff cannot prove the terms of the mortgage under which the defendant, according to the plaintiff, keeps possession of these lands. The plaintiff therefore all the time was entitled to institute a suit for recovery of possession of his lands within 12 years of the date of the invalid mortgage, invalid in the sense that it could not be enforced owing to the absence of registration; the possession of the defendant became adverse to the plaintiff from the very date of the invalid mortgage: see, (1879) 4 AC 324.6 In this view the suit of the plaintiff if treated as a suit in ejectment is barred having been instituted beyond 12 years of the date of the invalid mortgage. It was however open to the plaintiff to establish that the defendant had accepted some title in the plaintiff with the concurrence of the latter since the year 1921, e.g, as a lessee by payment of rent (such as wad pointed out in the House of Lords' case just referred to) or that some other relationship has been entered into between the parties provided this can be established by some evidence admissible in law, other than by the documents of the year 1921. All that the plaintiff has established in the present case is that the defendant has accepted the plaintiff's title to receive the sum of Rs. 8 per year either as rent or as damages for use and occupation of this land. Apart from this, the plaintiff has no right whatsoever and the suit for recovery of possession ought to have been dismissed. Strong reliance was placed upon the case in 47 Mad 203 which was also relied upon by the learned Judge of this Court against whose decision the present appeal is brought. It is contended that this case is direct authority for the proposition that in the circumstances that have happened in the present case the defendant must be held to have prescribed as a mortgagee. In the case cited, the action was brought to enforce the terms of an unregistered deed of usufructuary mortgage of the year 1902 for a sum of Rs. 200 with a prayer for redemption. It was not open to argument that this unregistered deed of mortgage was inadmissible in evidence and therefore there was no mortgage of 1902 to redeem, but Ramesam, J. pointed out at page 213:

It does not follow that there was not, at the date of plaint, the relation of mortgagor and mortgagee between the plaintiff and defendants 1 to 4. It is a too narrow reading of the plaint which is a bare narration of the facts, to construe it as seeking to redeem only a mortgage of 1902 and no other…. To prove the extent of interest acquired by the defendants by adverse possession, the terms of the mortgage asserted by them have to be and may be proved. Such proof cannot be regarded as an attempt to prove the mortgage of 1902 or to adduce secondary evidence of the terms of the unregistered deed of mortgage; for the asserted mortgage need not necessarily be (though very often it will be) identical with the mortgage attempted to be created by means of the unregistered deed of mortgage.

The case has not been tried. One cannot now know what evidence the plaintiffs are going to adduce to prove the mortgage acquired by the defendants by adverse possession….

Even if the defendants acquired no mortgage or other limited interest by adverse possession, the plaintiffs can succeed if they are able to prove their title.

8. In this case, as I pointed out in the course of argument, the learned Judge who ultimately decided the difference of opinion expressly stated that he was remanding fee case in order to enable the plaintiff to prove by some other evidence (of which the learned Judge knew nothing) as to whether the relationship of mortgagor and mortgagee existed between the parties on the date of the plaint without deciding how the plaintiff would be able to establish this. In the present case the question which we have to decide is not the nature and character of the possession of the defendant but the terms on which the defendant holds the land as a mortgagee according to the plaintiffs. There is no legal evidence in the case to establish the fact that the defendant was a mortgagee of the plaintiff on the date of this action on certain terms which can be proved. In my opinion it will be violating the statute to allow the plaintiff to prove the terms of the very mortgages embodied in two documents which admittedly being unregistered cannot be used in evidence for any purpose whatsoever; the contents of the documents are sought to be used by the plaintiff for purposes which cannot be called collateral. I would therefore unhesitatingly come to the conclusion and agree that this appeal should be allowed and the suit of the plaintiff dismissed with costs throughout.

B.D/R.K

9. Appeal allowed.