1. The plaintiffs-respondents are two sons of Amirali Khan and a grandson and three sons of Gajraj Khan. They sued for redemption of ten plots of land in Ulatu which had been held by Imambaksh, brother of Amirali and Gajraj, on the following allegations. Aliman, widow of Imambaksh, along with Amirali and Gajraj in 1902 gave in zarpeshgi plot Nos. 401 and 496 to Shaikh Abdul for the nine years, 1959 to 1967 S. or till repayment and Abdul was in possession till redeemed by plaintiffs in 1930. Aliman to whom the plots in suit including the two plots mentioned had been given as maintenance, gave zarpeshgi of them on 14th February 1905, to Abdul Jabbar Khan (ordinarily designated Jabbar), defendant-appellant 1 (whose son is defendant appellant 2) for Rs. 168-8-0 for a period of five years or (impliedly) till repayment thereafter, the sum of Rs. 18-12-0 beng kept back for payment of the rent of the holding by the mortgage for the five years. Aliman died a year later and then her daughter Sajiban who was insane from her minority, succeeded her but Jabbar in collusion with the landlord's officers had the land entered in the record-of-rights in 1909 as raiyati in his own name. Sajiban died in 1918 a lunatic and the plaintiffs being her heirs redeemed the zarpeshgi of 1902 and their offer to redeem also the appellant's zarpeshgi of 1905 being refused, sued to redeem.

2. The defendants denied that the lands belonged to Mirali Khan, father of Imambakhsh and his brothers Amirali, Gajraj and others, and alleged that Aibaksh, uncle of Imambaksh, gave the lands as maintenance to Aliman who mortgaged them to Jabbar and died a year later, whereupon the landlord resumed the lands and the zarpeshgi ceased to exist but Jabbar took raiyati settlement after paying a nazrana of Rs. 180, received a hukumnama on 12th August 1903, and maintained Sajiban at their house, and at the Settlement in 1909 his raiyati right was, in spite of a tanaza by Gajraj Khan, recorded, Sajiban assenting. The defendants claimed occupancy right also by adverse possession from the date of the record of rights, denied that Sajiban was insane and that the plaintiffs were heirs of Sajiban and alleged that she died seventeen or eighteen years prior to suit. They also denied the zarpeshgi of Shaikh Abdul and the repayment in 1986 S. (1930). The record-of-rights finally published in 1911 shows appellant 1 as raiyat and in the column for “remarks” Shaikh Abdul in possession of plot Nos. 401 and 496 on the basis of the mortgage of 1902. The Munsif dismissed the suit holding that the defendants had acquired a right of occupancy by adverse possession and that the suit was barred by limitation.

3. The lower appellate Court found that Sajiban succeeded Aliman as raiyat of the holding, that the landlord had no right of re-entry and that if Jabbar suffered dispossession from the lands by the landlord during the pendency of the zarpeshgi, any raiyati settlement with him would not be adverse to Sajiban but was acquired in trust for her. The attestation officer had first ordered that Sajiban be recorded as raiyat with the consent of Jabbar but immediately after, on her appearing and asking that her holding should be recorded as raiyati in the name of Jabbar, he so directed in spite of the protest of Gajraj Khan. The Subordinate Judge opines that under the tenancy law Sajiban could not relinquish her occupancy holding practically by gift in favour of the mortgagee. It would seem however that she simply abandoned the holding or at least acquiesced in the resumption and new settlement of it. In point of fact Jabbar had already been entered as raiyat in the landlord's sharista. The view accepted by the Munsif that at least after the termination of the mortgage period of five years in 1910 the possession of the defendants would be under an invalid mortgage and hence limitation would commence from the date of the expiry of the period, was negatived by the appellate Court which held on the authority of Mt. Raj Rani v. Gulab (1) that possession was with the permission of the mortgagor, and that as the zarpeshgi of Abdul regarding plot Nos. 401 and 496 was recorded in the khata of the defendants, there could have been no surrender by Sajiban. Accordingly he held that the defendants were not entitled to set up a raiyati tenancy as a clog on the plaintiff's right of redemption and the plaintiffs were entitled to redeem any zarpeshgi of 1925. He then went on to find (though on his previous findings he regarded it as not material) that Sajiban died in 1918, was “insane as alleged by the plaintiffs.” He accordingly decreed the appeal and the suit. In second appeal it is urged on behalf of Jabbar and his son substantially that the suit is barred by limitation. Now by S. 10-B(1) introduced in 1903 into Bengal Act 1 of 1879 it was enacted that no transfer by a raiyat of his right is his holding or any portion thereof by a mortgage or lease for any period exceeding five years or by sale, gift or any other contract or agreement, should be valid to any extent. The provision had effect from 1st January 1903. The mortgage of 1902 was not affected and was valid. Aliman's mortgage of 1905 to appellant 1 was for a period of five years or till payment. The question arose soon after the enactment of S. 10-B(1) whether a mortgage in such terms was not invalid under that provision. The sub-registrars were registering such transfers, though Sub-S. (3) forbids registration of any transfer in contravention of Sub-S. (1). I am not aware that any decision has ever been given by the High Court on the question of their validity. The result of the deliberations however was that in the Chota Nagpur Tenancy Act of 1908 S. 10-B(1) was re-enacted in S. 46(1) in the following terms:

“No transfer by a raiyat of his right in his holding or any portion thereof; (a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years; or (b) by sale, gift or any other contract or agreement; shall be valid to any extent.”

4. The question therefore now arises whether the mortgage of 1905 was invalid and if it was, what the results are in respect of the present parties. To my mind the mortgage of 1905 was invalid as being in contravention of S. 10-B(1). The expanded provision which re-placed it to S. 46(1) of the Act of 1908, was not really necessary but was an explanation intended mainly for administrative purposes (including registration) and is to be regarded as a precaution of safety, useful perhaps but not essential. In the present case it is clear that it was not in the contemplation of the parties that the zarpeshgi of 1905 could in any event be for any less period than five years. It is so drawn up that it is not for an indeterminate period not less than five years and it offends against Sub-S. (1), S. 10-B.

5. The mortgage of 1905 being invalid, the mortgagee manifestly began to prescribe forthwith. But what was the nature of the prescription? Had the transfer been by sale, the prescription would be in respect of recovery of possession as owner by the transferor, Beni Prasad Kuari v. Dukhi Rai (2). In the case of an invalid mortgage however the mortgagee prescribes as such and the result is in the ordinary circumstances that after the period of limitation has expired, he is entitled to retain possession until his mortgage is redeemed. Adverse possession is limited to the intention of the person in possession. In the case of Rai Rani v. Gulab it was held that in such circumstances, possession would not be adverse but it seems to me that it would be adverse to the extent of the mortgage interest which the mortgagee claimed against the owner. Only two cases of this Court are brought to notice relating to the question of limitation after an invalid, transfer under Section 46 of the Chota Nagpur Tenancy Act, 1908. In Shaikh Rasul v. Mt. Jamni (3), it was held that the claim of a raiyat for ejectment of a darraiyat on whom he had conferred in invalid permanent darraiyati interest, was barred by limitation as the result of the acquiescence of the plaintiff for more than the statutory period in the claim adverse to him of the defendant to hold dar-raiyati interest permanently. In Mandoo Ganghu v. Jitram Baitha (4) where the usufructuary mortgage was for a term of six years or until subsequent redemption, it was held that the mortgagee's possession was adverse to his mortgagor from its inception. In my view the decision depends upon the question whether the possession which the mortgagee asserted, was merely possession qua mortgagee or possession under some title other than mortgagee such as raiyati. In the present Instance if no other consideration had arisen, I should have held without hesitation that the appellant prescribed from the inception of the invalid mortgage in 1905 but only qua mortgagee and that the right which accrued to him after the expiry of the statutory period of limitation, was to hold until redeemed.

6. But on behalf of the appellants other considerations are advanced. It is clear that from 1908 Jabbar has asserted possession not as zarpeshgidar but as a raiyat. He did so with the active concurrence of the landlord and also with the acquiescence or even the concurrence of the preceding raiyat Sajiban. It is contended that is not sufficient to give him a good title, both because Sajiban was insane and because he held a zarpeshgi from the preceding raiyat. The finding that Sajiban was insane was not the subject of an issue in the trial Court and it is also vitiated by failure to consider the most important item in the evidence which is her appearance in 1909 before the Revenue Officer when about 35 years of age. In my opinion it is wholly unwarranted and erroneous. No doubt if Jabbar when mortgagee obtain a raiyati right from the landlord, it could only be obtained for his mortgagor since, as was held in Tali Mahta v. Lakhraj Mohton (5), a mortgagee cannot change his character as such by taking a settlement from the landlord and if he takes a settlement in his own name, it must be held in law that he has taken it for the benefit of the mortgagor and a usufructuary mortgagee of a holding is under a clear duty to maintain his possession as against the landlord and cannot be suffering dispossession put an end to the tenancy of the mortgagor and take a fresh settlement from the landlord.

7. But the obvious answer is that in law Jabbar's mortgage being invalid, he was not a mortgagee. Accordingly he was under no responsibility towards the heir of Aliman and any settlement which he might take from the landlord who resumed the tenancy after the death of Aliman, did not enure for the benefit of Aliman's heir. It was open to him to constitute to prescribe qua mortgagee but also open to him to prescribe in some other character. It cannot be gainsaid that since the date of the hukumnama of 1908 or failing that from the date of attestation in 1909 when Gajraj contested the entry of Jabbar as raiyat or, at any rate, from the date of the final publication of the record-of-rights in 1911, Jabbar has been in adverse possession of the land of the holding on the claim that he was the raiyat. It is true that the entry in the record-of-rights shows the zerpeshgi of 1902 but that was merely a record of the de facto mortgagee in possession in point of fact Jabbar never secured possession of plots Nos. 401 and 496 and apparently acquiesced in the zerpeshgi as an encumbrance, on his holding.

8. The result is that the appellants have been in adverse possession of the raiyati interest for more than the statutory period and have acquired a good title so that the plaintiffs as the heirs of the previous raiyat who granted an invalid mortgage in 1905 are not entitled to redeem them. The plaintiffs however are entitled to rely upon the zerpeshgi of 1902. Apart from the fact that it was valid at its inception, the zerpeshgidar, Shaikh Abdul, whose position they occupy, had clearly acquired a valid title by prescription against the appellants by more than twelve years' adverse possession as zerpeshgidar after the crucial years 1908 and 1911 and the appellants cannot recover those two plots except by redemption of his zerpeshgi which the plaintiffs held. Accordingly the appeal must be allowed with costs here and in the Court below and the decree of the Munsif restored. This decision does not affect the position of the plaintiffs as regards plots Nos. 401 and 496 which it appears they are entitled to retain as zerpeshgidars until the appellants as raiyats of the holding redeem the zerpeshgi of 1902.

K.S

9. Order accordingly.