Spencer, J.

The plaintiffs sued to enforce in this suit the terms of a usufructuary mortgage deed praying in their plaint for a decree for redemption and alleging that plaintiffs 1 to 5 had mortgaged the suit property to the deceased husband of 1st defendant who was the brother of defendants 5 to 8.

The defendants did not admit the existence of any mortgage. The plaintiff did not set up a title to eject the defendants otherwise.

The mortgage deed produced, being unregistered, could not under Sect. 49 of the Indian Registration Act be admitted as evidence of plaintiffs right to redeem. The Subordinate Judge was of opinion that it could be looked at for the collateral purpose of showing the nature of defendants possession. But no question arises as to the nature of that possession, until the plaintiffs first show that they have a right to recover possession. The purpose for which they wish to have the document admitted is not a collateral purpose, but the direct purpose of proving the basis of their title.

I do not for an instant wish to question the proposition that if one party to a suit sets up a title, based on adverse possession, his opponent may show by means of an unregistered mortgage deed that the nature of the possession was permissive.

There is the high authority of the Privy Council in Varada Pillai v. Jeevarathnammal (I.L.R., 43 Mad., 244 (P.C.), for holding that an unregistered document which could not be used as evidence of a transaction requiring registration, such as a gift, may yet be looked at, as explaining the nature and character of a persons possession.

But a plaintiff, who sues for redemption, on the strength of an unregistered mortgage deed, can never succeed, because for obtaining a decree to redeeth, it is necessary to prove the terms of the mortgage, and they cannot be proved by any other evidence than the document itself. This is the effect of Sects. 17 and 49 of the Indian Registration Act, read with Sect. 91 of the Indian Evidence Act. If we were to allow unregistered documents to be used as evidence of title, by a mere device of pleading, we should be defeating the purpose of the Act; ( vide Varada v. Krishnasami (I.L.R., 6 Mad., 117)) Even if the defendants were to admit in their written statements that the relations between themselves were those of mortgagors and mortgagees, the plaintiffs could not on the strength of that admission be given a decree for redemption, as for redemption they must further prove what sum is due: see Krishna Pillai v. Rangasami Pillai (I.L.R., 18 Mad., 462), Mutta Venkatachalapathy v. Pyinda Venkatachalapathy (12 M.L.T., 579), Seetamma v. Krishnaswami Rao (31 M.L.J., 240), Kalliani Amma v. Narayanan Nambiar(28 M.L.J., 266) and Somu Gurukkal v. Rangammal (7 H.C.R., 13). In Annada Hait v. Khudiram Haiti (19 Cal. L.J., 532=25 I.C., 558), the plaintiff proved a title paramount to the land, and the defendant while admitting possession under a usufructuary mortgage took the objection that being a verbal mortgage it was void. The decision was that of a single judge. The learned Judges who heard the Letters Patent Appeal give no reasons for their decision. In the present suit, the defendants deny the plaintiffs mortgage and set up an independent title and the plaintiffs have not applied to amend the plaint, so as to convert the suit into one to recover possession on their title as owners. Even if they now applied to amend their plaint, so as to make it a suit on a different cause of action, I do not think we could properly permit this to be done (see S. A. No. 880 of 1912).

In these circumstances, the appeal, in my opinion, should be allowed and the suit dismissed with costs throughout. But as my learned brother is in favour of dismissing the appeal, we refer the question, on which we differ, to a third Judge, under Sect. 98 of the Code of Civil Procedure.

Venkatasubba Rao, J. The suit is brought for redemption. The plaintiffs allege that they were the owners of the property, that they executed, about 15 years previous to the suit, a usufructuary mortgage deed in favour of the defendants predecessor-in-title, that the latter was put in possession of the property, which continues to be in possession of the defendants, that the mortgage deed was not registered and that the defendants refused to receive the amount due and deliver possession of the property to the plaintiffs. A s is usual in such a plaint, the prayer is for possession of the property, the plaintiffs offering to pay the amount due on the footing of the mortgage.

The defendants in effect claim that the property is theirs and deny the existence of the mortgage. The District Munsif dismissed the suit, holding, on a preliminary issue framed, that the suit does not lie on an unregistered mortgage bond. He pronounced judgment on the 10th November, 1917, and relying on Subbaya v. Madduletiah (17 M.L.J., 469) and Yuruva Venkata Reddy v. Maddi Veeranna (23 I.C., 376), over-ruled the contention on behalf of the plaintiffs that the mortgage deed may be referred to, to explain the nature and character of the possession held by the defendants. The Subordinate Judge reversed the decision of the District Munsif and remanded the suit for disposal in accordance with law. His judgment is dated 26th August, 1920, and as by that time the Judicial Committee of the Privy Council in Varada Pillai v. Jeevarathnammal (I.L.R., 43 Mad., 244), had decided that an unregistered deed of gift could be admitted in evidence for the purpose of ascertaining the character of the possession of the alleged donee, the Subordinate Judge following the decision came to the conclusion that the unregistered bond was admissible for the limited purpose stated and observed as follows:

When once the document proves the nature of the defendants possession to be that of the mortgagees, they cannot prescribe for an absolute title but they can prescribe for mortgagees rights, after the lapse of 12 years from the date of the deed.

The suit being for redemption of a usufructuary mortgage, it is in substance a suit for possession of the property. The fact that the plaintiff while asking for possession has offered to pay the amount due on the mortgage to the defendant, does not render it any the less a suit for the possession of the property. What the plaintiff has to do in the suit is to prove his title. Having proved it, he may rely upon the mortgage deed itself, to show that the defendants have not acquired a title by adverse possession. I may observe that the title of the plaintiff to the property has not been determined, the case having been disposed of on a preliminary point. The plaintiff may adduce evidence to prove his ownership to the property. As a piece of evidence he may even rely upon an admission of his title, if any, made by the mortgagees in the unregistered deed in question. It is not necessary to pursue this matter further, because, when the plaintiff proves his title, it will be for the defendants to make out their claim to the property. If they succeed in showing that they have been holding the property asserting the title of mortgagees, for over the statutory period, they will then have shown that they have acquired by adverse possession the limited interest of mortgagees in the property in question.

It has been contended on behalf of the defendants that to take this view, will be tantamount to permitting the plaintiffs to convert their suit from one of redemption into one of possession. This argument is untenable. The precise point was raised and determined in Armada Hait v. Khudiram Hait (19 Cal., L.J., 532=25 I.C., 558). The case was first decided by Harrington, J., and his judgment was approved in Letters Patent Appeal by Sir Lawrence Jenkins, C. J., and Mookerjee, J. The following observation in the judgment of Harrington, J., disposes of the argument advanced before us on this point on behalf of the defendants.

The argument that has been addressed to us is that if the plaintiff is given possession in this suit, it would be substantially altering the character of the suit. I do not agree with this. It appears to me that a suit for possession on redeeming a usufructuary mortgage is in substance a suit for possession of the land. If the plaintiff establishes his title and the only answer the defendant has is that the mortgage is void in point of law, still nevertheless the plaintiff would be entitled to get the land, because the defendant on his own showing has no title.

The next argument that the defendants learned vakil advanced before us is that the suit is to enforce the terms of the mortgage deed which was unregistered, and that, as the mortgage cannot be proved, the suit must fail. It is perfectly true that a mortgage over immovable property to secure a sum of Rs. 100 or upwards cannot be created by an unregistered deed. It follows that a mortgagee, to whom possession has not been transferred, suing for sale of the mortgaged property cannot establish his right by relying upon an unregistered mortgage deed and his suit will necessarily be dismissed; but, where there is a transfer of possession, other considerations will arise. The interest which a man can acquire by adverse possession may be limited by the nature of his possession; and adverse possession of a limited interest for the statutory period is a good plea to a suit in ejectment to the extent of that interest. In Madhava v. Narayana , (I.L.R., 9 Mad., 244) it was held that the kanomdars who held the land under an invalid kanom for more than twelve years acquired by adverse possession the limited interest, for which they prescribed. Again in Sankaran v. Periyasami (I.L.R., 13 Mad., 467), it was held:

that the payment of Poruppu did not prevent the possession of the defendants from being adverse to plaintiff, as the possession of a limited interest in immovable property may be as much adverse for the purpose of barring a suit for the determination of that limited interest, as is the adverse possession of a complete interest in the property, to bar a suit for the whole property.

In Budesab v. Hanmanta (I.LR., 21 Bom., 509), the two Madras cases referred to above were cited with approval, and it was held that a tenant may, after the statutory period, acquire the right of perpetual tenancy. It was pointed out that under Art. 144 of Act XV of 1877, a suit for possession of immoveable property or any interest therein is barred after the lapse of 12 years, from the time when the possession of the defendant becomes adverse to the plaintiff, and that in a suit in ejectment it is the tenants interest in possession of the tenant that the landlord seeks to recover.

I may also refer to Manavikraman v. Ammu (I.L.R., 24 Mad., 471 (F.B.), which, I think, has a very material bearing on the present case. In 1864, A mortgaged certain lands to B for Rs. 750. In 1881, B professing to act as the absolute owner, mortgaged the same lands to C for Rs. 5,000, and C enjoyed possession of the lands for a period exceeding 12 years, from the date of his mortgage. A then instituted a suit for redemption. It was held that A was bound to redeem, Cs mortgage, before he could recover his possession of the property on the ground that Cs mortgage which, but for the law of limitation, would have been invalid as against A, had become good by Cs possession for 12 years.

From these authorities, it is clear that the defendants in the present case can acquire the title of a mortgagee by adverse possession for the statutory period. The deed of mortgage being invalid, it confers upon him no right, and it cannot be relied upon, as the source of the mortgagees title. On the contrary, his right is based solely upon the fact that he has been in adverse possession of the limited interest for the statutory period. Under the decision of the Privy Council in Varada Pillai v. Jeevarathnammal (I.L.R., 43 Mad., 244 (P.C.)), the mortgage deed may be referred to, for ascertaining the character of his possession. It may be referred to for determining the quantum of interest, for which the defendants prescribed claiming as mortgagees. When it is said that a mortgagees interest may be prescribed for, the statement implies that the mortgagees interest is definite and precise. If the question is, has a person prescribed for a mortgagees interest, in respect of Rs. 100 or Rs. 10,000, the document may be looked at for ascertaining the quantum of interest which the adverse possessor has been claiming or has prescribed for.

This case is the converse of Varada Pillai v. Jeevarathnammal (I.L.R., 43 Mad., 244 (P.C.)). In the latter, the defendant, who claimed title by adverse possession sought to rely upon the unregistered documents referred to in that case, for proving the character and nature of his possession. In this case, it is the plaintiff that desires to prove by referring to the unregistered deed, that the defendants possession has not been adverse. Again in the Privy Council case, the defendant wanted to make out his adverse possession of, and title to, the property by relying upon the unregistered documents. In the present case, the plaintiff seeks to disprove the allegation of adverse possession, on the part of the defendant, by relying upon the deed, which has been registered. In principle the two cases are identical.

As regards the defendants right to be paid the amount of the mortgage, no difficulty does however arise in the present case, as the plaintiff has admitted that an amount is due to the defendant on the footing of the mortgage and offers to pay it.

I am therefore of the opinion that the judgment of the Subordinate Judge is correct and that the order of remand must stand.

[This appeal came on for final hearing on the 17th and 21st days of August, 1923, in pursuance of the Order of Reference to a third Judge before Ramesam, J.]

Ramesam, J.

The facts are stated by my learned brothers. It is sufficient to add that defendants 1 to 4 represent the original mortgagee who is dead and defendants 5 to 8 are their relations and friends who got into possession of the suit property within 12 years prior to suit.

It is true that the unregistered deed of mortgage mentioned in the plaint is inadmissible in evidence to prove the mortgage. It is also true that a mortgage of immovable property to secure a sum of Rs. 100 or upwards cannot be created otherwise than by a registered deed. There is therefore no mortgage of 1902 to redeem.

But 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. The decision in Krishna Pillai v. Rangasami Pillai (1895) I.L.R. 18 Mad. 462 does not apply. If the defendants who remained in possession for 15 years prescribed for and acquired the interest of a mortgagee by adverse possession, the relation between the plaintiff and the defendants is that of a mortgagor and mortgagee. The limited interest of a mortgagee may be acquired by adverse possession Madhava v. Narayana (1886) I.L.R. 9 Mad. 24

4. 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. The unregistered deed of mortgage (which ought to be in the defendants possession), if forth coming, can be admitted in evidence to show the character of the defendants possession. Varada Pillai v. Jeevarathnammal (1920) I.L.R. 43 Mad. 244 (P.C.). It cannot be assumed at this stage that no other evidence will be forthcoming.

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. It cannot be said that the character of the suit is changed. In the first place, even as the suit is framed, it is a suit for possession based on title, as against defendants 5 to 8 and the suit, is not a suit for mere redemption. But apart, from this, I agree with the decision in Annada Hait v. Khudiram Hait (1914) 19 C.L.J. 532, where it was held that a suit to redeem a usufructuary mortgage is substantially a suit for possession. [See also Sesha Naidu v. Periasami Odayar (1921) I.L.R. 44 Mad. 951.]

I agree with Venkatasubba Rao, J., that the appeal must be dismissed. Costs of the High Court to abide the result.