Jagannadhadas, J.
1. Plaintiffs are the appellants in this second appeal. It arises out of a suit for recovery of possession of certain lands which has been dismissed by both the Courts below.
2. The suit lands admittedly belonged to the plaintiff's family. The case of the plaintiffs as set out in the plaint is that the father of plaintiffs 2, 3 and 4 allowed defendant 2, some years ago to occupy the suit-lands by some arrangement with her and that defendant 2 has allowed her son, defendant 1, to cultivate the lands since she is unable to take care of herself; that they are not aware of the arrangement under which the defendants wore let into possession, but that if it is found that the lands are charged with any sum, they are willing to pay up the same The case of the defendants is that between the years 1927 and 1930, the father of plaintiffs 2 to 4 borrowed from time to time various sums of money aggregating to Rupees 1061 12-0 from defendant 2 on the security of the suit-lands; that the plaintiffs are fully aware of the said mortgages and of the possession of the defendants for over 12 years. They further allege that all the mortgages were invalid and inoperative in law and that plaintiffs 2 to 4 and their father not having recovered possession of the lands within 12 years, have last their right to them that the defendants have acquired perfect title by adverse possession and that the plaintiffs not having any subsisting title to the suit-property are not entitled to recover possession thereof.
3. Both the Courts below have given effect to this plea of adverse possession by the defendants and the consequent extinction of title of the plaintiffs and have dismissed the plaintiffs'suit. The only question therefore that arises in the case is whether the Courts below are right in their view that as a result of adverse possession of the defendants, the plaintiffs' original admitted title to the suit-lands has become extinguished.
4. Exhibits 2 to 2-E are the mortgage-bonds under which the suit-property purported to be mortgaged. Out of them Ex. 2-E was a usufructuary mortgage, while Exs. 2 to 2-D are anomalous mortgages, whereby it was stipulated that if the mortgage amounts were not paid up within the stipulated period, the defendant was entitled to enter into possession as a usufructuary mortgagee. All these documents are unregistered and therefore not valid as such to create any mortgage interest. The view taken by the Courts below re-lying on the case in Bhukhan Mian v. Radhika Kumari Debi, A. I. R. (25) 1938 Pat, 479 : (176 I. C. 35), is that since the mortgages are invalid for want of registration, the possession of the defendants was from its inception adverse and that since admittedly the defendants have been in possession for over 12 years, the plaintiffs have lost title by virtue of the adverse possession of the defendants for over the statutory period.
5. One fact, essential for the further discussion, may be cleared at the outset. Both the Courts below seem to have been under the impression that there has been no delivery of possession to the defendants under the mortgages. They have said as in connection with the argument advanced before them on behalf of the plaintiffs that since the usufructuary mortgage, EX. 2 E, is for a sum less than RS. 100, it was valid, inasmuch as there has been delivery of possession, though there has been no registration. Whether or not the Courts below were right in their finding that there has been no delivery of possession by the plaintiffs to the defendants under the mortgage-documents, there can be no doubt that the defendants entered into possession as mortgagees--presumably under the terms of the mortgages, EXS. 2 to 2-E-That is clear from the pleadings themselves. The plaint in para, 3 states as follows :
'Father of plaintiffs 2, 3 and 4 allowed defendant 1 a few years ago to occupy Schedule (A) lands by some arrangement with her and it has now transpired that defendant 1 has allowed defendant 2 to cultivate Schedule (A) lands, as she is unable to take care of herself:'
The defendants in para 3 of their written statement state as follows ;
'That the allegation in para 3 of the plaint is substantially correct. Between 1927 and 1930 the father of plaintiffs 2 to 4 borrowed from time to time various sums of money aggregating Rs. 1061-12-0 from defendant 2 on the security of the suit lands.'
There can be no doubt on these pleadings that the defendants themselves have admitted that they have got into occupation by an arrangement as alleged by the plaintiffs in their plaint, and that they set out the details of that arrangement in para. 3 of their written statement by referring to the borrowing from 1927 to 1920 on security--the mortgages Exs. 2 to 2-E being of dates ranging from 1927 to 1930. That the defendants were in possession as mortgagees is also made out by the mutation entries, Exs. 3 and 4, which show that plaintiff 1 is the recorded tenant and that defendant 2 is in possession as a mortgagee on behalf of the father of plaintiffs 2 to 4. The Courts below were inclined to think that there is no evidence that these entries in the mutation registers were made at the instance of defendant 2, But whether this is so or not, there can be no doubt that these entries are relevant and valuable piece of evidence and that taken with what has already been shown to be the attitude of the defendants in the pleadings, it cannot be disputed that the defendants obtained possession as mortgagees and were holding possession as such, though the mortgages themselves may have been invalid. Exhibits 2 to 2-E, though unregistered are admissible to show the nature of the possession and there is no evidence at all to show that the defendants were at any time asserting that they were holding possession on any title other than as mortgagees.
6. The question then that has to be considered is whether when a person obtains possession under invalid mortgage, and there is nothing to show that at any time he has assorted possession under any claim of absolute right, the title of the original owner is extinguished. Extinction of title by adverse possession is provided for in Section 28, Limitation Act which runs as follows :
'At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.'
7. It is argued that the original mortgagors could sue for recovery of possession from the very moment when the defendants entered on possession on the ground that they did not obtain any right to retain possession under the invalid mortgages. It is, therefore, said that since the plaintiffs did not sue for possession for a period of twelve years, their title gets extinguished. To a suit for possession, under circumstances of this kind, the only articles applicable, if any, are Articles 142 and 144, Limitation Act. It may be seen however that Article 142 cannot apply, because such a suit is not based on any allegation of dispossession by the defendants. The plaintiff, who has himself put the defendants in possession or allowed them to take possession cannot complain of dispossession.
Therefore the only Article that can be applied is Article 144. Under Article 144, the limitation for a suit for recovery if possession of immovable property or of any interest therein is 12 years from the date when the possession of the defendants becomes adverse to the plaintiffs. It is only on the assumption that the possession of the defendants under an invalid mortgage is completely adverse to the title of the rightful owner, from its inception, that it would be possible to say that the title gets extinguished by such adverse possession for twelve years by the combined operation of Article 144 and Section 28, Limitation Act. But the assumption that the possession of the mortgagee under a void mortgage is adverse in respect of the absolute title of the owner is unfounded. It cannot be doubted that the character of the adverse possession depends on the animus possidendi of the person under which the possession has been taken and continued : see a learned discussion of this topic in Manakkal Euppen v. C. Munde Kottil, 1912 M. W. N. 445 : (37 Mad. 373). Though the mortgage as such may be invalid, the possession itself having been taken on the footing of its being a mortgage, such possession is not in derogation of the absolute title of the owner, but is at least permissive. Therefore though the owner can institute a suit for recovery of possession from the very moment the defendants have entered into possession, he can do so because the defendants' possession is permissive and the permission can be revoked at any time on account of the fact that the document under which such permissive possession is taken is ineffective to create any interest in the property which can give him the right to retain possession. The suit to recover possession in such circumstances is really in the nature of a suit to recover back possession given away under the limited interest by way of a mortgage which has been purported to be conveyed and on account of which the defendant has obtained possession. Such a suit for possession is, therefore, in a sense, a suit to recover back possession of the limited interest in immovable property under Article 144, Limitation Act. It is only in respect of that limited interest that the possession of defendants is adverse. It would, therefore, follow that when the mortgagee gets possession under the void mortgage, the mortgagor can within twelve years therefrom recover possession of the property freed from the limited interest but beyond the twelve years only subject to that limited interest. On the expiry of the twelve years not only is the right of the original owner to the limited interest extinguished, but the said limited interest gets transferred to the person in possession.
8. This is the gist of the series of decisions which have laid down that where a person obtained possession under a void mortgage, he acquires on the lapse of twelve years a prescriptive right to the limited interest by way of mortgage Madhava, v. Narayana, 9 Mad. 244; Sankaran v. Penasami, 13 Mad. 467 ; Manavikraman Ettan v. Ammu. 24 Mad 471 (F.B.);Sundara Gurukkal v. Subramania Archakar, 16 I. C. 960 (mad.); Budesab v. Hanmanta, 21 Bom. 609 ; Fatesingh v. Bamanji. 27 Bom. 515: (5 Bom, L. R. 274) and Gopala Dasu v. Rami, 44 Mad. 946 : (A. I. R. (8) 1921 Mad. 410). Similarly other limited interests can also be acquired by adverse possession : see Subbayya v. MadduLetiah, 17 M. L. J 469 : (3 M. L. T. 187) J Icharam Singh v. Nilmony, 35 Cal 470 : (7 C. L. J. 499); Dwarki Nath v. Shashti Kinkar, 18 I. C. 869 : (17 C. W. N. 595) ; Venkata Narasimha, Appa Rao v. Venkata Purushottima 31 Mad. 321 : (18 M. L. J. 409) and Manikkal v. Munde Kottil, 1912 M. W. N. 445 : (37 Mad. 373).
9. In this connection I may also note that the broad dicta of the Privy Council in Madhav Rao v. Raghunath Venkatesh, 47 Bom. 798 : (A. I. R. (10) 1923 P. C. 205) and Naina Pillai v. Rama Nathan, 47 Mad 337 : (A. I. R. (11) 1924 P. C. 65) to the effect that
'no tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against the landlord from whom he bolds the lands,'
does not militate against this view, as the same refers to a case of an ordinary tenant setting up a change in the character of his tenancy by prescription and not to a case of the present kind where a person eaters into possession under a void mortgage or lease.
10. In Bhukhan Mian v. Radhika Kumari Debi, A. I. R. (25) 1938 Pat 479 ; (176 I. C. 35), the learned Judges however held that a person cannot prescribe for a limited interest like a tenancy or a mortgage. With great respect, I am unable to persuade myself that that proposition is correct. On the facts of that case, the question itself did not arise for a direct decision as pointed out by Manohar Lall J. at p. 482, right-hand column where the learned Judge stated as follows :
'If, as 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 bad not expired when the suit was instituted in 1933.'
The dictum of the learned Judge was therefore obiter; but in view of the fact that both the learned Judges discussed the question on principle and were inclined to give their assent to the proposition as above stated, weight and respect is due to that statement. On a close examination, however, of the reasoning of thelearned Judges in support of the proposition, it is found that the same is based on two assumptions (1) that the position of the mortgagee under the void mortgage is adverse in the sense that is entirely is derogation of the owners' full title; (2) that a mortgage interest can be created only by a contract as prescribed in the Transfer of Property Act. The learned Judges have failed to notice that the possession of the mortgagee under a void mortgage is permissive so far as the absolute title is concerned and adverse only in so far as the limited interest is concerned. They have further failed to bear is mind that a mortgagee's interest is an interest in immovable property and not merely a contractual security for a loan and that adverse possession and prescription is as much a root of title to interest in immovable property as a contractual document satisfying the requirements of the Transfer of Property Act. This Section 23, Limitation Act, is operative not only to extinguish the title of the rightful owner, but to transfer the title to the wrongful possessor is now well-settled See Gossain Dass v. Issur Chunder Nath, a Cal. 224; Akhauri Haliwant v. Deo Narain, A.I.R. (28) 1941 Pat 181 : (19 pat 852) and Fakirappa Jotappa v. Ningappa Shialingappa, A. I. R (30) 1943 Bom. 265 : (209 I.C. 251) I am therefore unable with all due respect to follow the decision in Bhukhanmaan v. Radhika Kumari Debi, A. I. R. (25) 1938 Pat. 479 (176 I.C. 951 and I am definitely of the view that such a limited interest can be acquired by advert possession.
11. The question, however, further remains whether and to what extent the invalid mortgages themselves can be used in evidence to gather the terms of the mortgage, the right to which in the defendant has become ultimately perfected by adverse possession and precaution. On that question, there has been difference of opinion as disclosed in Appamma v. Channavadu, 47 Mad. 203 : (A. I. R. (11) 1924 Mad. 292). In that case one of the learned Judges, Spencer J. was inclined to the view that
'a plaintiff who sues For redemption on the strength of an unregistered mortgage-deed can never succeed because for obtaining a decree to redeem it is necessary to prove what the terms of the mortgage were and they cannot be proved by any other evidence than the document itself. This is the effect of Sections 17 and 49, Registration Act, read with Section 91, Evidence Act.'
The other two learned Judges, however, namely, Venkatasubba Rao and Ramesam JJ. came to a differs it conclusion. It was pointed out by them that in view of the Privy Council decision in Vorada Pillai v. Jeevarathnammal, 43 Mad. 244 : (A. I. R. (6) 1919 P. C. 44) the invalid mortgage-deed could be referred to for ascertaining the nature and character of possession, (a proposition which was not disputed even by Spencer J.) and that accordingly it may be referred to for determining the quantum of interest for which the defendant prescribed. To determine the character of the possession, the quantum of the interest under which possession is purported to have been taken, has to be ascertained by a reference to the document itself. That quantum is necessarily defined and limited by the terms of the document and does not offend against Sections 17 and 49, Registration Act or Section 91, Evidence Act. The attempt to use the document to prove the quantum of the interest and the character of possession thereunder is not the use of the document for the purpose of enforcing the mortgage itself under the document. The document is not used as the source of the mortgagee's title--the title itself having been acquired by adverse possession and prescription. I would therefore respectfully follow and adopt this view of the majority in Appamma v. Chinnavadu, 47 Mad. 203 : (A. I. R. (11) 1924 Mad. 292).
12. In the present case even if the terms of the mortgage-documents themselves are not admissible in evidence to prove the nature of the interest acquired, there is no serious difficulty in the way of the plaintiff, because the defendant himself has asserted and admitted the terms in para. 3 of the written statement as already stated above.
13. A suggestion has been made in the course of the argument on behalf of the plaintiff-appellants that on the finding that the defendants ace in the position of usufructuary mortgagees they would not be entitled to any money being paid for redemption by virtue of the provisions of the Orissa Money-lenders Act Section 17 as amended. This, however, is not sustainable. The documents, Exs. 2 to 2-E are of the years 1927 to 1930 and assuming that the defendant has obtained possession under them in or about the year 1930, he acquires a mortgagee's interest only after 1942. For the purposes of the application of the Orissa Money-lenders Act, the prior period for which he was in possession as an invalid mortgagee, does not count. It, therefore, follows that the plaintiffs are entitled to a decree for possession against the defendants on the footing of redemption in respect of the principal amount that is due under the documents, Exs. 2 to 2 E namely, the sum of Rs. 961-12-0 (the total of the principal amount under the mortgages, 2 to 2-E). There will accordingly be a decree for redemption in favour of the plaintiffs for the above amount, time fixed for redemption being three months from the date when the decree finally drawn up. The second appeal is accordingly allowed with costs throughout.
14. The plaintiffs appellants before they can get a decree are bound to pay the court-fee on the amount of Rs. 961-12-0 in all the three Courts on the footing of redemption. They will pay the deficit court-fee in all the three Courts within a month from this date and the decree will issue only on the payment of the deficit court-fees.
Ray, C.J.
15. I agree.