M. Madhavan Nair, J.
1. The appellants are defendants 1 and 2 in a suit of redemption of a mortgage evidenced by Ext. B-1 dated July 26, 1884. The mortgagor had a kanom right in the property, which was made the subject of the mortgage under Ext. B-1. The mortgage, by assignment under Ext. A-2, became vested in Sivarama Pattar, the predecessor-in-interest of the appellants. Ext. A-2 was on August 30, 1892. On June 17, 1897, the mortgagor executed an assignment of his equity of redemption in favour of the predecessors of the appellants evidenced by Ext. B-4 in the case. But it was not registered and has therefore been found inoperative to convey any title to the vendee. Subsequent to Ext. B-4 the assignees thereunder obtained renewal of the kanom under Ext. B-5 dated February 19, 1912. On September 27, 1950, there was a partition in the family of the 1st defendant, without junction of the 2nd defendant, wherein the suit property was referred to as a mortgage right. The plaintiff, who is the son of the mortgagor of Ext. A-1, ignoring Ext. B-4 and claiming the equity of redemption as vested in him as successor to the original mortgagor, has instituted this suit for redemption of the mortgage. The defendants contended inter alia that he had lost the right to redeem on' account of their long adverse possession of the property. The Courts below concurred to find that Ext. B-4 was inoperative and inadmissible in evidence, that the possession of the appellants and their predecessors as assignees of the mortgage could not have changed its character under Ext. B-4 and therefore decreed the suit. In this second appeal counsel for the appellants contends that the law of adverse possession of mortgagees who have taken an invalid or inoperative conveyance from the mortgagor has not been correctly appreciated by the Courts below.
2. The question recently came up for consideration by the Supreme Court in Padma Vithoba Chakkayya v. Mohd. Multani, AIR 1963 SC 70 when their Lordships observed:
'It is not disputed that when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor because in law his possession is that of the mortgagor. But what is contended is that if the mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties thereafter not as a mortgagee but as owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any reason inoperative under the law. This contention, in our opinion, is well-founded. Though there was at one time a body of judic:al opinion that when a person enters into possession as a mortgagee he cannot under any circumstances acquire a title by prescription against the owner, the law is now fairly well-settled that he can do so where there is a change in the character of his possession under an agreement with the owner, vide Kandaswami Pillai v. Chinnabha, AIR 1921 Mad 82 ..... The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated December 21, 1923 has been held, as already stated, to be inadmissible in evidence as it is not registered. The result of it is only that there was no retransfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is why the appellant is tiuti-tJud to redeem. But the endorsement, taken along with the sale-deed by the second defendant in favour of the first defendant (mortgagee) is admissible in evidence to show the character of possession of the latter. Vide Varada Pillai v. Jeevarathnammal, 46 Ind App 285: (AIR 1919 PC 44). And that was clearly adverse to the owners''.
3. The dictum in AIR 1921 Mad 82, given in the head-notes correctly, is as follows:
'An unregistered sale cannot be set up as a transaction having effect of itself to transfer any interest in the property; but it is permissible to consider it, as showing the nature of transferee's subsequent possession, e.g., when the sale is of mortgaged property to the mortgagee that it was not as a mortgagee, but as full owner. That being established it would after the expiry of 12 years ripen into a full title and bar mortgagor's right of redemption'.
4. Counsel for the respondents on the other hand invited my attention to Mst. Kirpal Kuar v. Bachan Singh, AIR 1958 SC 199, wherein their Lordships observed:
'The question was whether Duraisani had acquired title to the property by adverse possession. It was held that though the petition in the absence of registration could not be admitted to prove gift, it might be referred to for showing that the subsequent possession of Duraisani was as a donee and owner of the land and not as trustee or manager for the two donors and therefore to show that the nature of such possession was adverse to them. We cannot agree that en the authority of Varada 'Pillai's case, 46 Ind App 285 : (AIR 1919 PC 44) the agreement of 6-2-1932. can be admitted in evidence in the case in hand to show the nature of Karnam Knar's possession of the lands subsequent to its date. In Varada Pillai's case, 46 Ind App 285 : (AIR 1919 PC 44). Duraisani had got into possession only after the petition and claimed to retain possession only under the gift mentioned in it. The petition was therefore admissible in evidence to show the nature of her possession. In the present case Karnam Knar had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissible possession and, therefore, to give effect to the agreement contained in it which admittedly cannot be done for want of registration. To admit in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act.'
It was contended that the effect of the latter ruling was that an unregistered conveyance cannot be admitted in proof of a change in the character of possession of a person already in possession ofthe property, though it may be admissible to prove the character of possession let into for the first time under it. I do not think that this is a correct construction of the dictum of their Lordships. What their Lordships pointed out is that an unregistered conveyance cannot, under Section 49 of the Indian Registration Act, be accepted as evidence of any transfer of title to the property. When an unregistered conveyance is taken by a person already in unlawful possession of the property to recognise that conveyance so as to legalise his possession would be to recognise the title that was purported to be conveyed by it; and that would be an express violation of the provisions of the Registration Act. What is laid down in AIR 1963 SC 70 is not in any way inconsistent to that position. When to a mortgagee in possession of the property the mortgagor executed an unregistered conveyance of the equity of redemption, that conveyance, their Lordships have pointed out, cannot convey title to the property to the mortgagee; but it gives rise to an adverse claim, by the mortgagee to hold the property as owner, which adverse claim, if allowed to continue undisturbed for 12 years, would confer a title to the equity of redemption on the mortgagee, the effect of the consent of the mortgagor involved in the unregistered conveyance being to exempt the mortgagee from the estoppel which would have otherwise debarred him from asserting any claim adverse to the mortgagor during the continuance of the mortgage. In laying down that rule, their Lordships have not recognised the unregistered conveyance at all, for, if they have done so, the possession of the mortgagee after its execution would be lawful possession of an owner -- not adverse possession as an owner. Adverse possession implies no legal title but only a pretence of what is not in fact. I do not therefore find any inconsistency in the two rulings of the Supreme Court in AIR 1958 SC 199 and AIR 1963 SC 70. In the present case also the mortgagor had executed a conveyance, though unregistered, of the equity of redemption to the mortgagee, thereby giving his consent to the mortgagee to pose himself as the owner of the property. Though that conveyance is ineffective to transfer forthwith the title to the equity of redemption, it can be admitted for the collateral purpose of proving the consent of the mortgagor to the mortgagee to deny the title of the mortgagor thereafter, and to assert ownership in himself against the mortgagor. As the mortgagee had then no lawful title to ownership his assertion of ownership in himself makes his possession adverse to the mortgagor which by prescription may earn a title recognised by law to the feigned ownership for him in the course of 12 years to come. Recently this Court had occasion to consider the identical position, and I am glad to note that the view taken by the majority in Mathew v. Ayyappankutty, 1962 Ker LJ 177: (AIR 1962 Kerala 177 FB), paragraphs 80 to 85) was what found approval of their Lordships of the Supreme Court in AIR 1963 SC 70.
5. Counsel pointed out that this contention has not as such been taken by the defendants in their pleadings wherein they have relied only on Ext. B-5, the renewal of the kanam in their favour by the jenmi of the property, as the basis of their adverse claim to the property. The written statement does not aver that the mortgagees have been folding the property as absolute owners for over 12 years. They referred to Ext. B-5 as the mark of recognition by the jenmi of their being the holders of the equity of redemption in the property. The 2nd defendant as D. W. 1 has proved Ext. B-4 and mentioned that that was a new find, which he was not aware of when the defence pleadings were drafted; and the ist defendant as D. W. 2 has sworn that the defendants claim mortgagor's rights under Ext. B-4. The plea of obtaining the right of the mortgagor under Ext. B-4 has been thus expressly taken during the trial of the suit. I do not think that the absence of a specific reliance on Ext. B-4 in the written statement would preclude the defendants from urging the same in this second appeal. Even the avernment that they have been holding the property adversely to the mortgagors would indicate that they have been claiming to hold the property as kanomdars under the jenmi as their mortgagor originally did. However, as they have put it quite unambiguously in the course of the trial of the suit, the contention of counsel does not appear to be substantial and is therefore rejected.
6. It may incidentally be pointed out that even if adverse possession be counted from the date of Ext. B-5, this suit, instituted more than 38 years thereafter, would be beyond time.
7. In the result, the plaintiff is found to have no title to redeem the suit mortgage. The decree of the courts below is therefore reversed and the suit dismissed with costs here and in the Court below. The parties will suffer their costs in the primary Court.