1. This is an appeal by defendants 1 to 4 in the suit which was brought by the plaintiffs on the footing of two I: usufructuary mortgages, Exs. A and B, in which the father-in-law of the 1st plaintiff and-the father of the 2nd plaintiff were the mortgagors and the 1st defendant was the mortgagee. The plaintiffs claiir. that the mortgage debt having been completely discharged they are entitled to the possession of the mortgaged lands by ejection ofithe defendants. They also claim an account.
2. The mortgage deeds are dated respectively 27th September 1892 and 28th April 1893. The written statement filed by the defendants admit that the father-in-law of the 1st plaintiff, the 2nd defendant and certain minors became indebted up to 13th March 1887 in the sum of Rs. 560 in respect of the plaint mentioned registered deeds of mortgage with possession and they executed a settlement of account. They also file an account and plead that the sum of Rs. 950 odd is still due to them and that the plaintiffs cannot redeem without paying this sum.
3. The issues, as originally settled, were for accounts and on the question of non-joinder of certain alleged necessary parties. But on remand the District Munsif framed an additional issue which is the point taken in the second appeal before us. The issue runs as follows: Are the suit mortgages void on account of non-enfranchisement and, if so, is the plaintiff's suit in time and the claim for possession of the lands not barred?' Both the lower courts have held that the plaintiffs are entitled to redeem.
4. The suit lands were unenfranchised service hum lands at the date of Exs. A and B though they have been enfranchised since. The mortgages therefore are by the provisions of Section 5 of Madras Act III of 1895, clearly void; and there is ample authority for holding that the provisions of Section 43 of the Transfer of Property Act cannot be applied so as to save a transaction of thissort. Vide Narahari Sahu v. Siva Korithan Naidu (1913) M.W.N. 415, Bachu Ramayya v. Phari Satchi (1913) M.W.N. 999 and Ramayya v. Jagannadham (1915) M.W.N. 838 .
5. The appellants contend that, as the mortgages are void, the defendants having been in possession continuously since 1892 to the date of the suit in 1914 have acquired an absolute title to the suit lands and cannot be disposssessed by the plaintiff or anybody else. The respondents, on the other hand, contend that while admitting that the defendants have been in possession for over twelve years they have not prescribed for any higher title than that of mortgagees in possession and are therefore liable to be redeemed and dispossessed on accounts being taken. The question for decision is which of these views is correct.
6. The learned vakil for the respondents relies largely on Javerbhai Jorabhai v. Gordhan Narsi I.L.R(1914) . Bom. 358 where a house and certain properties were mortgaged and the mortgage was void under the provisions of the Bhagdari Act, Bombay Act V of 1862. The mortgage deed however contained a covenant for compensation payable to the mortgagee in the event of dispossession. The defendants contended that the mortgage being void the suit was barred by limitation. It was however held that the covenant was a collateral contract independent of the invalid mortgage and that 1he mortgagee could recover on it. The learned Judges in that case however went further and as justifying the plaintiffs claim for compensation for disturbance under the covenant, they decided (Page 372) that the possession of the plaintiff from 1897 to 1909 gave him an absolute title to the limited interest of a mortgagee in possession, and 'in assertion of that right held adversely to the defendants who continuously attorned to him'. The case reported in Adam Umar v. Bapu Bawaji I.L.R(1909) . 33 Bom. 116 is authority for the proposition, if any is needed, that possession obtained through a transaction which the law prohibits and declares to be void is adverse, and the learned Judges there point out that it is just such possession originating without colour of title which is contemplated by the law of limitation, cf President and Governors of Magdalen Hospital v. Knotts (1879) L.R. 4 A.C. 324 where the possession obtained under void leases was held to be adverse. In Budesab v. Hanmanta I.L.R.(1896) 21 Bom. 509 it was held that.a partial interest in land may be lost by adverse possession.as well as the whole interest arid that the right to such partial interest may be asserted by suit. The learned Judges refer to two Madras decisions apparently with approval, namely Madkava v. Narayana I.L.R(1885) . Mad. 244 where it was held that adverse possession for 12 years of a limited, i. e., Kanom interest in immoveable property is a good plea to a suit of ejectment to the extent of that interest. inSmtkaran v. Periasami I.L.R.(1890) Mad. 467 which is the other case referred to, it was held that possession of a limited interest in immovable: property may be just as must adverse for purposes of barring a suit for the determination of that limited interest as is adverse possession of a complete interest in the property to bar a suit for the whole property. Further in Sundara Gurukkal v. Subramania Archakar (1913) 18 I.C. 960 (a decision of this Court,) it was held that by virtue of adverse possession a person does not acquire a higher title than he has prescribed for. There the office of an archaka of a temple and the properties attached thereto were usufruc-tuarily mortgaged and after the expiration of the period of redemption the mortgagee continued in possession for the prescriptive period. The learned Judges held that the mortgagee acquired only the right of a usufructuary mortgagee and not the right of absolute ownership.
7. It appears to us that the decisions quoted above must be followed. There is no evidence in this case that the defendants, ever claimed or thought that they were prescribing for the whole interest. The plaint and the written statement, as pointed out above, are based entirely on the void mortgages. It was not till the remand trial before the Munsif that the question of the effect of the possession of the defendants under the void mortgages was raised and considered. No other question was argued in Second Appeal. We must therefore hold that the defts. have not prescribed for any higher title than that of usufructuary mortgagees. In this view, the judgment of the Lower Appellate Court is right and the second appeal must he dismissed with costs.
8. On the memo, of objections it is argued for the appellants that only 3 years rent and profits can be recovered on the ground that the covenants in an usufructuary mortgage are personal and that, as the title of the true owner is not transferred to the adverse owner who has remained in possession for the period required by the statute of Limitation, cf. Tichborne v. Weir (1892) 67 L.T. 735, the conditions do not affect the latter and cannot be enforced against him. The case in Punugu Subbia v. Nukalapati Kami Reddi : (1916)30MLJ331 is also quoted. It is admitted that had the mortgages been valid the 8 year's rents and profits claimed by the respondent would be recoverable. The cases cited deal with the possession of strangers to the true owner and do not apply to the present case, where as pointed out above, the parties all along considered that they occupied the position of mortgagors and mortgagees and the provisions (if any) made for the disposal of the rents and profits of the mortgaged property must have been perfectly well known to them all. It appears to us that consistently with our judgment in the appeal that the parties after the expiration of the period of Limitation in fact occupied the position of usufructuary mortgagors and mortgagees, we must hold that in the circumstances of this case, rents and profits from 1906 to 1914, the date of suit, are recoverable.
9. The memorandum of objections is therefore allowed with costs; the decree of the District1 Judge will be modified accordingly and that of the District Munsif restored.