The defendants father obtained by Ex. A (dated 1st August 1888) an usufructuary mortgage of the suit property, as well as a simple mortgage of another property, not the subject of the suit. It is now found by the Subordinate Judgea finding which we must accept that four or five years after Ex. A, the mortgagor told the mortgagee to take the suit property in lieu of the whole debt of Rs. 75 and therefore he enclosed it by a wall.

If there was no delivery, within the meaning of Sect. 54 of the Transfer of Property Act, the case is on all fours with Usman Khan v. Dasanna (I.L.R., 37 Mad., 545), Munnigadu v. Manean Gopalu Ready (13 L.W., 400), and Kandasami Pillai v. Chinnabba (I.L.R., 44 Mad., 253) [LQ/MadHC/1920/238] . The defendants having been in possession for more than 12 years, the present suit in 1920 by the plaintiff claiming title from the original mortgagor, or to redeem, is barred. But Mr. Krishnaswami Aiyar argues that there can be no adverse possession, for he argues that part performance of an agreement to sell, by way of delivery of possession, cannot make the possession adverse and he refers to the Full Bench decisions in Vizagapatam Sugar Development Co. v. Muthurama Reddi (I.L.R., 46 Mad., 919 [LQ/MadHC/1923/233] =13 L.W., 953). This argument of his involves the anomaly that there was no delivery, for the purpose of Sect. 54, but there was some kind of delivery, which amounts to part performance.

Apart from this anomaly, the facts of this case are different from Vizagapatam Sugar Development Co. v. Muthurama Reddi (I.L.R., 46 Mad., 919 [LQ/MadHC/1923/233] =13 L.W., 953), where the delivery was in part performance of an agreement to sell. Here, there was an attempt at a sale and the change in the character of possession was in pursuance of such an attempt. Even if there was no difference between the two cases, we do not see any reason why the possession obtained in part performance of an agreement to sell, or the possession in its changed character, which was the result of an attempted but infructuous sale, should not be adverse to the vendor. The principle that possession can be adverse only to a person competent to sue, (see Palaniyandi Malavarayan v. Vadamalai Odayan (2 L.W., 723), Manickkam Pillai v. Thanikachalam Pillai (4 L.W., 369), and Nataraja Desi kar v. Govinda Rao (17 L. W., 344), does not apply, where the change in the character of the possession was by mutual consent: (see Usman Khan v. Dassanna (I.L.R., 37 Mad., 545). Buswell on limitation Sect. 260). It follows that the defendants perfected a title by prescription. So far, we have assumed that there was no valid delivery.

But it seems to us that the delivery in this case satisfies the requirements of Sect. 54 of the Transfer of Property Act. A direction by the vendor to keep the property as absolute owner amounts to delivery. We agree with the decision in Muthukaruppan v. Muthu (I.L.R., 38 Mad., 1158) [LQ/MadHC/1914/332] . There is no reason to think that the word delivery in Sect. 54 is used in a peculiar sense, or that the words places the buyer in possession of the property in the 4th clause, are intended to alter the legal conception of possession or of delivery. Delivery usually means such delivery as the thing to be delivered is capable of. Possession cannot be taken to be synonymous with occupation as has been done in Sibendrapada Banerjee v. Secretary of State for India in Council (I.L.R., 34 Cal., 207), with which decision, we cannot agree. We observe that though the decision has been referred to in Basker Gopal v. Padman Hira (I.L.R., 40 Bom., 313) [LQ/BomHC/1915/122] , the two learned Judges referred to it very guardedly and did not expressly approve of it.

We are of opinion: (1) that there has been a valid delivery; and (2) if there was no valid delivery, the defendants acquired a title by prescription. In either case, Sect. 48 of the Registration Act cannot affect the title of the defendants. The Letters Patent Appeal is dismissed with costs.