1. This is an appeal by defendants NOS. 1 to 4 in the suit which was brought by the plaintiffs on the footing of two usufructuary mortgages, Exhibits A and B, in which the father in law of the first plaintiff and the father of the second plaintiff were the mortgagors and the first defendant was the mortgagee. The plaintiffs claim that the mortgage-debt having been completely discharged, they are entitled to the possession of the mortgaged lands by ejection of the defendants. They also claim an account.
2. The mortgage-deeds are dated respectively 27th September 1892 and 23th April 1833. The written statement filed by the defendants admits that the father-in-law of the first plaintiff, the second defendant and certain minore 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 and 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 nonjoinder 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. That issue runs as follows 'Are the suit mortgages void on account of non-enfranchisement, and, if so, is the plaintiffs' 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 inam lands at the date of Exhibits A and B, though they have been enfranchised since. The mortgages are, therefore, 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 this sort. Vide Narahari Saku v. Kira Korithan Naidu 19 Ind. Cas. 881 , Bachu Ramayya v. Dara Satchi 21 Ind. Cas. 600 and Karri Ramayya v. Villoori Jagannadham 30 Ind Cas. 889 .
5. The appellants contend that, as the mortgagee 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 dispossessed by the plaintiffs or by anybody else. The respondents, on the other hand, contend that, while admitting that the defendants have been in possession for over 12 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 a case reported in Javerbhai Jorabhai v. Gordhan Narsi 28 Ind. Cas. 442 , 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 the 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) Page of 39 B, [Ed.] that the possession of the plaintiff from 1897 to 1909 give 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 Sale v. Bapu, Bawaji 1 Ind. Cas. 663 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. [Of. President and Governors of Magdalen Hospital v. Knotts 27 W.R. 602, where the possession obtained under void leases was held to be adverse.] In Budesab v. Hanmanta 11 Ind. Dec. 341 it was held that a partial interest in land may be lost by adverse possession as well as the whole interest and that the right to such partial interest may be asserted by suit. The learned Judges refer to two Madras decisions, apparently with approval, viz., Madhava v. Narayana 10 Ind. Jur. 61 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. In Sankaran v. Periasani 13 M. 467 which is the other case referred to, it was held that possession of a limited interest in immoveable property may be just as much 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 16 Ind. Cas. 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 Archaka of a temple and the properties attached thereto were usufructuarily 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 defendants 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 be dismissed with costs.
8. On the memorandum of objections it is argued for the appellants that only three years' rents and profits can be recovered, on the ground that the covenants in an usufructuary mortgage are personal and that the title of the true owner in not transferred to the adverse owner who has remained in possession for the period required by the Statute of Limitation [Of Tich borne v. Weir 4 R. 26], the conditions do not affect the latter and cannot be enforced against him. The case in Punugu Subbiah v. Nukalapati Rami Reddi 33 Ind. Cas. 326 is also quoted. It is admitted that had the mortgages been valid, the 3 years' 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 Base, 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 fast 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 District Judge will be modified accordingly and that of the District Munsif restored.