Ananthakrishna Ayyar, J - (1.)The plaintiff's sued to redeem a mortgage. It was alleged that the deceased elder brother of the plaintiff usufructually mortgaged the suit land to the defendant for Rs. 50 on 29 July 1903 under Ex. 1. The defendant while admitting the mortgage pleaded that he became the absolute owner of the property by purchase on 29 October 1906, from plaintiffs 2 and 3 and that his possession subsequent to 1906 was as an absolute owner; and though the sale-deed Ex. 2 of 1906 was unregistered, his possession since 1906 was as absolute owner and that he had acquired absolute title by adverse possession for more than 12 years. The plaintiff's impugned Ex. 2 as a forged document, and the. District Munsif found that Ex. 2 was not genuine and accordingly decreed redemption. On appeal by the defendant the learned District Judge came to the conclusion on the evidence that Ex. 2 was genuine, that it was executed by plaintiff 2 and attested by plaintiff 3. Holding that Ex. 2 was genuine he reversed the District Munsif's decision and dismissed the suit observing as follows: I cannot bring myself to believe that Ex.2 was a forgery. I am satisfied the land was on that date sold to defendant. I find on issue 2 that the sale is true and that though the sale deed conveyed no title (being unregistered) I find under issue 3 that the possession of defendant was adverse since the date of Ex. 2 and the suit is therefore barred by limitation.
(2.)The plaintiffs have preferred this second appeal to the High Court and on their behalf it was contended by Mr. M.S. Venkatarama Ayyar, the learned vakil for the appellant, that accepting Ex. 2 to be genuine, the defendant's possession having commenced lawfully as a usufructuary mortgagee under the plaintiff's family and the sale-deed, Ex. 2, being admittedly inadmissible to prove the sale, the defendant's possession should all along be considered to be that of a mortgagee, since a mortgagee in possession could not change the nature of his possession as mortgagee, nor convert it into adverse possession against the mortgagor. He relied on the decision of Miller and Sadasiva Iyer, JJ. in Ariya Puthira V/s. Muthukumaraswami [1912] 37 Mad 423 to the effect that the unregistered sale-deed, Ex. 2, could not be referred to, to prove that the defendant's possession was as vendee. He further contended that the mortgagor was entitled to redeem at any time within 60 years under Art. 148, Lim. Act and that the plaintiffs ought to have been given a decree for redemption.
(3.)On behalf of the respondent Mr. Seshagiri Sastri contended that the sale-deed Ex. 2, though unregistered, was admissible to show the nature of the subsequent possession held by the respondent. The learned vakil relied on the decision of the Privy Council in Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 and of the decision of the Full Bench of this Court in llama Sahu V/s. Gowro Ratho A.I.R. 1921 Mad. 337, in support of his position. He also contended that the decision in Ariya Puthira V/s. Muthukumaraswami [1912] 37 Mad 423, is no longer law having been dissented from subsequently in this Court, and he relied on the decision of Sundara Ayyar and Sadasiva Ayyar, JJ. in Usuvian Khan V/s. Dasanna [1912] 37 Mad. 545, followed by Ayling and Odgers, JJ., in Kandaswami Pillai V/s. Chinnabha A.I.R. 1921 Mad. 82, as showing that the subsequent sale though invalid may be proved to show the nature of the possession subsequently held by the defendant.