1. The defendant's father obtained by Ex. A (dated 1st August, 1888) a usufructuary mortgage of the suit property as well as a simple mortgage of another property not the subject of the suit. It is now found by the Subordinate Judge--a finding that we must accept--that four or five years after Ex. A, the mortgagor told the mortgagee to take the suit property in lieu of the whole debt of Rs. 75 and therefore he enclosed it by a wall.
2. If there was no delivery within the meaning of Section 54 of the Transfer of Property Act, the case is on all fours with Usman Khan v. Dasanna : (1912)23MLJ360 , Munniguddu v. Maneam Gopalu Reddy (1920) 13 LW 400 and Kandasami Pillai v. Chinnabba ILR (1920) M 253 : 1920 40 MLJ 105. The defendants having been in possession for more than twelve years, the present suit in 1920 by the plaintiff claiming title from the original mortgagor to redeem is barred. But Mr. Krishnaswami Aiyar argues that there can be no adverse possession, for he argues that part-performance of an agreement to sell, by way of delivery of possession, cannot make the possession adverse and he refers to the Full Bench decision in Vizagapatam Sugar Co. v. Muthurama Reddi : AIR1924Mad271 This argument of his involves the anamoly that there was no delivery for the purpose of Section 54, but there was some kind of delivery which amounts to part-performance.
3. Apart from this anamoly the facts of this case are different from Vizagapatam Sugar Co. v. Muthurama Reddi : AIR1924Mad271 where the delivery was in part-performance of an agreement to sell. Here there was an attempt at a sale and the change in the character of possession was in pursuance of such an attempt. Even if there was no difference between the two cases we do not see any reason why the possession obtained in part-performance of an agreement to sell or the possession in its changed character which was the result of an attempted but infructuous sale should not be adverse to the vendor. The principle that possession can be adverse only to a person competent to sue [see Palaniyandi Malavarayan v. Vadamalai Odayan (1915) 2 LW 723, Manickam Pillai v. Thanikachalam Pillai (1916) 4 LW 369 and Nataraja Desikar v. Govinda Rao : (1923)44MLJ318 does not apply where the change in the character of the possession was by mutual consent [see Usman Khan v. Dasanna ILR (1912) M 545 : 23 MLJ 360, Buswell on Limitation, Section 260]. It follows that the defendants perfected a title by prescription. So far we have assumed there is no valid delivery within the meaning of Section 54.
4. But it seems to us that the delivery in this case satisfies the requirements of $. 54 of the Transfer of Property Act. A direction by the vendor to keep the property as absolute owner amounts to delivery. We agree with the decision in Muthukaruppan v. Muthu : AIR1915Mad573 . There is no reason to think that the word ' delivery ' in Section 54 is used in a peculiar sense or that the words ' places the buyer in possession of the property ' in the 4th clause are intended to alter the legal conception of 'possession' or of 'delivery.' 'Delivery' usually means ' such delivery as the thing to be delivered is capable of. ' Possession cannot be taken to be synonymous with ' occupation ' as has been done in Sibendrapada Banerjee v. Secretary of State for India in Council ILR (1907) C 207 with which decision we cannot agree. We observe that though this decision has been referred to in Bhaskar Gopal v. Padman Hira ILR (1915) B 313, the two learned Judges referred to it very guardedly and did not expressly approve of it.
5. We are of opinion (1) that there has been a valid delivery, and (2) if there was no valid delivery the defendants acquired a title by prescription. In either case Section 48 of the Registration Act cannot affect the title of the defendants. The Letters Patent Appeal is dismissed with costs.