1. This appeal arises out of a suit for redemption of a mortgage executed on the 22nd of November 1884 by one Pahar Singh in favour of four persons, Chhote Lal, Kashi Din, Debi Prasad and Ram Prasad for Rs. 1,100. Ram Prasad was interested in the mortgage to the extent of l/5th as he had advanced Rs. 220 only of the consideration.
2. On the 17th October 1890 Pahar Singh sold certain other property to Chhote Lal Kashi Din and the representative of Debi Prasad and left with them Rs. 938 for payment of the mortgage of 1884. The reason why Rs. 938 was fixed as the amount to be paid was that under the mortgage-deed it had been agreed that the mortgagees were liable to pay Rs. 27 a year to the mortgagor, the rest of the usufruct going towards the interest. As six years had elapsed since the execution of the mortgage Rs. 162 fell to be deducted from the total consideration. The vendees were to pay to Ram Prasad his proportionate share of the mortgage-money. In the plaint it is stated that the plaintiffs do not know whether this was paid or not, but all the defendants have admitted that it was paid. The present plaintiffs have by various means which it is not necessary to particularise, acquired the equity of redemption of the mortgage and they' now seek to recover the 15th share which was originally in the possession of Ram Prasad and which they say is now in that of his widow, 4/5th of the property having been surrendered to the mortgagor in consequence of the sale-deed.
3. The only question for decision in this appeal is whether the suit for redemption of the mortgage is barred by limitation or not. Both the Courts below have found that it is so barred, holding that the mortgage was completely paid off in 1890 and that since that. year Ram Prasad's widow has been in adverse possession of the property.
4. The learned Advocate for the appellants argues that the widow of Ram Prasad still occupies the position of a mortgagee. Her husband originally obtained possession with a limited interest and cannot have increased that interest since, He has referred to a number of rulings in support of the proposition that when a mortgage has been paid off and the mortgagee holds over, the period of limitation for redemption of the mortgage is sixty years from the execution of the original deed. In Sudarshan Das v. Ram Pershad 24 Ind. Cas. 145 : 26 M.L.J. 511 : 15 M.L.T. 403 : 15 Cr.L.J. 409, it was held that so long as the property remains in the hands of the mortgagee it cannot be said that the mortgage has been redeemed. A right to redeem is a right to pay or tender the mortgage-money, and where the mortgagee is in possession, to obtain from him delivery of possession. To the same effect is Habeebullah v. Abdul Hamid 13 Ind. Cas. 963 : 34 A 261 : 9 A.L.J. 131, where it was remarked: 'The possession of a mortgagee does not become adverse to the mortgagor merely because the mortgagee remains in possession after the mortgage money has been satisfied out of the usufruct or has been otherwise paid off. Much more is required to set time running against the mortgagor.' Pokhpal Singh v. Bishen Singh 20 A. 115 : A.W.N. (1897) 214 : 9 Ind. Dec. (N.S.) 434 is to the same effect.
5. The lower Appellate Court has relied on a ruling in Zaibunnissa v. Parichhat 25 Ind. Cas. 611. In that case, however, there had been a suit brought by the mortgagor against the mortgagee for redemption and a decree had been passed in his favour. All through that ruling it was pointed out that this circumstance of an adjudication by a Court entirely altered the position of the parties and it was for this reason that the period of limitation was held to be 12 years from the Court's decree.
6. In the present case there has been no adjudication by a Court and I hold that the position of the mortgagee has not become adverse to the mortgagor merely because the mortgagee has continued in possession of the mortgaged property.
7. One other point taken on behalf of the respondent was that the widow of Ram Prasad at all events was holding adversely to the mortgagors as in presence of the sons of Ram Prasad she was not entitled to possession of the property at all. This argument has no force. It may be that the widow's possession was adverse to that of the sons, but that would not affect the position of the mortgagors. The rights acquired by the widow by adverse possession could only be rights against the mortgagee.
8. The appeal is allowed, As the defendants themselves pleaded that the mortgage-money had been paid the appellants will get a decree as prayed for in paragraph 10 (1) of the plaint for redemption and proprietary possession of the land in suit. The appellants will get their costs throughout including in this Court costs on the higher scale.