JUDGMENT [ENTITY], J.
1. This appeal is by the plaintiffs, who are two in number. Plaintiff No. 2 is the widow of one [ENTITY] of village Mohammadpur and is the mother of, plaintiff No. 1. The appeal is directed against the judgment and decree dated the 30th June, 1950, passed by the 1st Additional subordinate Judge, Chapra, affirming the decision in the suit given on 23rd December, 1948, by the Munsif, 2nd Court, Siwan. It arises out of a suit for redemption of zarpeshgi deed dated the 15th June 1919, executed for a sun) of Rs. 399/- by plaintiff No. 2 for self and as guardian of her minor son [ENTITY] in favour of defendant No. 1 and one [ENTITY], who subsequently assigned his interest to defendant No. 2, whose name is also [ENTITY] and who is the 'sala' of defendant No. 1. The property mortgaged therein was 3 bighas 7 khatas and 9 dhurs of kasht land which originally belonged to [ENTITY]. It appears that [ENTITY] died leaving his widow (plaintiff No. 2) and his son [ENTITY]. Subsequently after his death plaintiff No. 2 got another posthumous son (plaintiff No. 1).
Thereafter her first son [ENTITY] died issueless leaving his mother and his brother plaintiff No. 1 as his heirs. The case alleged in the plaint was that [ENTITY] in his own lifetime executed a baimokasha' deed in favour of plaintiff No. 2 transferring the property under mortgage to her and she on the basis of that 'baimokasha' deed came in possession of the same. During the revisional survey, however, plaintiff no. 2, who had by then her posthumous son, plaintiff No. 1, got the name of [ENTITY] recorded in the survey papers in respect of the lands given to her by the 'baimokasha' deed, though, according to her, the possession of that property remained with her.
Shortly thereafter, plaintiff No. 2 being in need of money, executed the aforesaid zarpeshghi deed for a sum of Rs. 399/- in favour of defendant No. 1 and one other person [ENTITY]. Her case was that she executed this deed for self and as guardian of [ENTITY] simply for the satisfaction, of the mortgagees though in fact [ENTITY] had no interest in the property mortgaged. On the execution of the document, [ENTITY] died while he was still Unmarried leaving the two plaintiffs as his heirs.
Thereafter the present suit for redemption was instituted on 25th September, 1947, and the case of plaintiff No, 2 was that it was instituted both on her behalf and on behalf of her posthumous son (plaintiff No. 1) just to avoid future complications in her suit; otherwise according to her plaintiff No. 1 was not a necessary party to it. It was further alleged in the plaint that the zarpeshgi money had been originally tendered to the defendants orally but as they refused to take it the same was deposited in court under [SECTION] of the [ACT].
2. The defence pleaded was that the plaintiffs had no right of redemption in the property under mortgage. The defendants denied the execution of the 'baimokasha' deed by [ENTITY] in favour of plaintiff No. 2 and they, in the alternative, alleged that the 'baimokasa' deed, even if executed by him, remained inoperative and was never acted upon.
Their case was that [ENTITY] before his death made an oral gift of his entire property in favour of his son [ENTITY] and put him in possession over it and it was On the basis of that gift that the name of [ENTITY] was recorded in the revisional survey papers.
It was further alleged by the defendants that the zarpeshgi deed was in fact executed by plaintiff No. 2 only as the guardian of [ENTITY], and the same having been executed by her as the mother and 'de facto' guardian of her son [ENTITY] was under Mohammadan Law illegal and void. They also alleged that after execution of the zarpeshgi deed plaintiff No. 2 married one [ENTITY] of village Saranpur and deserted her minor son [ENTITY] in village Mohamadpur and that [ENTITY] (Plaintiff No. 1) was in fact the son of plaintiff No. 2 by her second husband [ENTITY]. They further pleaded that as [ENTITY] had been deserted by plaintiff No. 2 on her marriage with [ENTITY], he took shelter under the care of defendant No. 3 with whom he lived till he became major and thereafter according to the case of the defendants [ENTITY] while ha was major, though still unmarried, made an oral gift of his entire property to defendant No. 3 and put him in possassion of the same.
Thus, according to the defendants, title in the property passed to defendant No. 3 and he on the basis of that got the zarpeshgi deed redeemed sometime in 1347 fasli and in proof of that got the necessary endorsements also made on it in his favour by defendants 1 and 2. On account of these allegations made by defendants 1 and 2 in their written statement, the plaintiffs subsequently impleaded defendant No. 3 too as a party to the suit. And defendant No. 3 in his written statement adopted all what was alleged by defendants 1 and 2 and in addition thereto advanced a case of paramount title on the basis of adverse possession.
3. The trial court found firstly that the story of oral gifts made by [ENTITY] in favour of his son [ENTITY] and then by [ENTITY] in favour of defendant No. 3 was a myth and the case of redemption of the zerpeshgi deed by defendant No. 3 was illegal. It also did not accept the story of 'baimokasa'. Thus, the conclusion to which the trial court arrived was that the land given in mortgage under the zarpeshgi deed remained the property, of [ENTITY] till his lifetime and on his death it was inherited by his son [ENTITY] to the extent of fourteen annas and by his wife (plaintiff no. 2), to the extent of the remaining two annas. It, however, accepted the case of the defendants that plaintiff No. 2 being mother and only a de facto guardian had no authority under the Muhammadan Law to execute the zerpeshgi deed on behalf of [ENTITY], and, therefore, that was void to the extent of his share. In that view of the matter, the trial court rejected the claim for redemption so far as the interest of [ENTITY] in the property under mortgage was concerned and held that the prayer for the recovery of that interest was barred by adverse possession.
It accordingly decreed the suit in part only allowing plaintiff No. 2 to redeem the property under the zerpeshgi deed to the extent of her two annas interest only. Against this judgment both the plaintiffs and the defendants preferred appeals in the lower appellate court but both were ultimately dismissed. In dismissing these appeals the lower appellate court as well rejected the story of the gifts said to have been made firstly by [ENTITY] in favour of his son [ENTITY] and thereafter by [ENTITY] in favour of defendant No. 3 and also disbelieved the story regarding redemption by defendant No. 3.
On the point of 'baimokasa' deed, it affirmed the finding of the trial court and in view of these facts found by the learned Subordinate Judge he came to the conclusion, as the trial court did, that the property belonged at the time of the zerpeshgi deed to plaintiff No. 2 and her son [ENTITY] and that on the death of [ENTITY] the plaintiffs inherited his interest in the property. But so far as the claim for the fourteen annas interest of [ENTITY] was concerned, the lower appellate court also came to the conclusion that it could not be redeemed as by then the defendants had acquired therein an absolute title by adverse possession. Hence this second appeal by the plaintiffs.
4. The only point that was canvassed at the bar in support of the appeal here was as to whether the plaintiffs could or could not redeem the interest of [ENTITY], which, as concurrently found by the two courts below, was to the extent of fourteen annas.
5. In law it is now well-established that a transfer by a de facto guardian under the Muhammadan Law is void ab initio, Mata Din v. [ENTITY] Ali, 39 Ind App 49 (PC) (A) and therefore, the courts below were right in coming to the conclusion that the zerpeshgi deed did not create any mortgage with regard to the interest of [ENTITY].
6. That being so, the case simplifies itself into the question as to what is the present position of the defendants vis-a-vis the heirs of [ENTITY] in regard to his interest in the property under the zerpeshgi deed which had been on the admitted case of the parties in the possession of the defendants for a period more than twelve years even on 25th September 1947 when the present suit was instituted. On this aspect of the problem the case advanced by the plaintiffs in the two courts below was that even if the mortgagees were held to be trespassers to the extent of the interest of [ENTITY] in the property under zerpeshgi deed what they prescribed for therein as a result of that adverse possession over it for a period more than twelve years was at best only the limited interest of a zerpeshgidar and in no case that of an absolute owner.
And, therefore, the interest of [ENTITY], according to them, could be redeemed by his heirs on the footing that defendants 1 and 2 were in possession over it as zerpeshgidars though in the eye of law there was no document to create the zerpeshgi in their favour with regard to that interest In answer to that lower appellate court in agreement with trial court gave the following finding:
" a zerpeshgi interest is a creation of the statute and not of contract, estoppel or admission. If there is no mortgage in the eye of law, it cannot be created by the conduct of the parties or by mere admission. In [PRECEDENT] it was laid down that a person cannot prescribe for a limited interest like tenancy or mortgage as both a tenancy, and a mortgage are creatures of contract and on fundamental principle, it is difficult to hold that a contract could be brought into existence by prescription. I, accordingly, hold that the bond was viod in respect of the 14 annas interest of [ENTITY] from its very inception and that no mortgage with respect to this interest was ever there which could be redeemed by the plaintiffs. I accordingly hold that [ENTITY] was not a mortgagor of his 14 annas interest so that the plaintiffs, his heirs, also are not mortgagors to that extent and cannot be allowed to redeem the bond in respect of this interest over which there never, existed a zarpeshgi. I accordingly hold that the plaintiffs are entitled to redeem only 2 annas interest in the bond in suit. Defendants 1 and 2 had admittedly been in possession since after the execution of the zarpeshgi lands including the interest of [ENTITY]. Their possession commenced as trespasser and continued as such till they were redeemed in the year 1347 fasli by defendant No. 3. Their possession, which must be held to be adverse, ripened into a perfect title before the alleged redemption by defendant no. 3. They had, therefore, acquired valid title to the suit lands and the claim of the plaintiffs for redemption was barred to the extent of [ENTITY]'s interest,"
Mr. [ENTITY] appearing for the appellants has challenged the correctness of this proposition laid down by the two courts below on the question of adverse possession and title acquired by prescription. In my opinion, the view taken by the lower appellate court cannot be successfully sustained 1m law and in stating this I am not unmindful of the Bench decision of this Court on this point in [PRECEDENT]. [ENTITY], Acting Chief Justice (as he then was) observed:
"I am aware of a number of cases in India which appear to have the effect of holding that a person can prescribe for a limited interest but I must say that I always fail to understand them, as both a tenancy and a mortgage are creatures of contract, and on fundamental principles I find it difficult to hold the view that a contract can be brought into existence by prescription. The view that I hold of the mattter is best expressed by the Allahabad High Court in [PRECEDENT]. [ENTITY], J. in delivering one of the judgment of the Full Bench of that Court made this observation:
'In my opinion, in order to bar the suit under [SECTION] of the [ACT] the adverse possession of the defendants must be of the same nature as that sought by the plaintiff.' Again I would add in my own words that prescription after all is nothing more than limitation of the plaintiff's action; if limitation has run, it merely prevents the plaintiff from recovering the property which otherwise would be his."
[ENTITY], J. in agreeing with the learned Acting Chief Justice that the appeal should be allowed and the suit of the plaintiff dismissed with costs throughout wrote a separate-judgment. The suit in that case had been instituted, as it appears from the judgment of [ENTITY], J., on the "allegation that-the defendant who was left into possession by virtue of two unregistered mortgages for Rs. 100 and Rs. 300 respectively bearing date 12th March 1921, has continued in possession as a mortgagee, that plaintiff 1 in 1932 deposited in Court the amount covered by the mortgages under the provisions of [SECTION], [ACT] because the defendant refused to receive the deposit outside Court, that notwithstanding the deposit the defendant refused to give up possession of the land with the result that plaintiff settled the land in dispute with plaintiff 2 who also was not allowed to enter into possession, and hence this suit. The defendant in his plea asserted that "he was not a mortgagee; because in his submission, the transaction of 12th March 1921 was in the nature of a lease, the amount of Rs. 400 was alleged to have been paid by him as salami for taking settlement of the disputed land that since then he had been paying the rent reserved in the two deeds at the Rate of Rs. 8 a year as settled on that date . In View o these facts [ENTITY], J. observed:
" I do not think it is necessary to consider whether the defendant can ever be held in law to be able to prescribe against a true owner his rights as a mortgagee, but if it were necessary to decide this matter, I would have respectfully agreed with the observations, which have fallen from my Lord the Chief Justice on this point in the judgment just delivered by him. I cannot understand how by a mere oral assertion a person can acquire rights as against a true owner as a mortgagee, it is necessary to have a contract to that effect either oral or unregistered where the amount advanced is below Rs: 100, and necessarily a registered document where the money advanced is above Rs. 100. If the mere oral declaration of the parties would be .held sufficient in law to establish the relationship of mortgagor and mortgagee, in the latter case, in my opinion, it would be stultifying and openly violating the statute. The reason for the rule is that the title must be based either upon a contract, express or implied, or upon statement of fact grounding an estoppel: per Lord Russell of [ENTITY] in [PRECEDENT]".
7. The passages in the judgment are no doubt weighty and deserve all consideration. In fact, ordinarily, I, sitting singly, would have been bound by that Bench decision. But the judgment of [ENTITY], J. unmistakably shows as also held by [ENTITY], J. in [PRECEDENT] that these expressions were mere obiter dicta and they were not necessary for the decision of that case. In that view of the matter I think if I may say so with all respect to those learned Judges that that decision does not stand in my way as an authority of binding character. Further in the case before me the facts are entirely different. Defendants 1 and 2 all along admitted and even in the written statement clearly averred that they entered into the property as Zerpeshgidars and so long as they remain-
ed in possession of it they remained there as Zerpeshgidars and that it was on the footing of Zarpeshgidars that sometime in 1347 fasli which is equivalent to 1940, they allowed defendant No. 5 to redeem the property as the holder of the equity of redemption by accepting their mortgage money from him and on making necessary endorsements to that effect in the mortgage bond itself.
At no stage, therefore, defendants 1 and 2 claimed any absolute title by adverse possession either by conduct or words. . So far as defendant No. 3 is concerned, he on his own admission, even if that part of his case be accepted as true, came into possession of the property sometime in 1347 fasli, that is, in 1940, on the allegation that he was the holder of the equity of redemption. Both the courts below have found that defendant No. 3 was not the holder of the equity of redemption, and therefore, he could not redeem the property. Therefore, his possession from the date when he entered into the property was that of a trespasser but as the present suit was instituted on 25th September, 1947, that is, within twelve years from the date when he entered into the property, he cannot be said to have acquired any title by adverse possession as a result of his entering on the property sometime in the year 1940. In that view of the matter, he can succeed to have acquired title by adverse possession only, if it is held that his predecessors-in-interest, namely, defendants 1 and 2, had already acquired absolute title by adverse possession before . they transferred it in some way or other to defendant No. 3. That being so, the question ultimately boils down to the point whether in the circumstances of the present case defendants 1 and 2 did in law acquire any title by adverse possession even if they did what was the extent and nature of it?
8. The expression "adverse possession means a hostile possession, that is, possession which is expressly or impliedly in denial of the title of the true owner, [PRECEDENT], and in order to constitute adverse possession, the possession must be adequate in continuity, in publicity and in extent to show that it is adverse to the competitor, [PRECEDENT]. Dr. [ENTITY] in his Elements of Law observes that possession to be adverse must be possession "by a person who does not acknowledge the other's rights but denies them". Therefore, the right that is acquired by prescription cannot be anything more than what the wrong doer purports to prescribe for. The question thus depends upon the animus possidendi (the intention of possessing) with which the possession is held by the adverse possessor.
It follows from the above that possession on the part of a person consistent and reconcilable with the title of the true owner cannot be adverse to him, [PRECEDENT]. Where, therefore, the possession may be either lawful or unlawful, it must be presumed, in the absence of evidence, that the possession is lawful: [PRECEDENT]. In other words, where a possession can be referred to a lawful right, it will not be considered to be adverse, [PRECEDENT]; [PRECEDENT] and [PRECEDENT]. The leading case on the subject is [PRECEDENT]. Therein Wood V. C. observed:
"Entering into possession and having a lawful title to enter he could not divest himself of that title by pretending that he had no title at all."
Then it is also in law "firmly established that a person who bases his title on adverse possession must show by clear unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed," [PRECEDENT]. If, therefore, it is shown that a person has entered in possession under some arrangement with the owners, he cannot be in law allowed to succeed in his claim to have acquired absolute title by adverse possession as is evident from the principles laid down in [PRECEDENT]. In the case of [PRECEDENT] a Hindu woman entered into the property with the claim of limited interest only. All, therefore, that was held to have been acquired by adverse possession by her was the interest of a limited owner alone.
Similarly in the cases of [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] persons in possession were held to have acquired the limited interest of a tenant only as they had entered on the land under that claim. Likewise in the case of [PRECEDENT] person in possession was held to have acquired only the rights of a trustee, manager or mutwalli of an institution as in that case he had entered on the property with that claim.
In the case of [PRECEDENT] a Hindu daughter entered into possession of her father's property under a will giving her only a limited estate and subsequently it turned out that the will was invalid. On those facts it was held in that case that she acquired only a limited estate by adverse possession. In the same way when a mortgage is void and, therefore, the possession of a mortgagee on the mortgaged property under such void mortgage is adverse to the mortgagor, what the mortgagee prescribes for in such property by his adverse possession is the title of a mortgagee only and not the title of an absolute owner ([PRECEDENT], [PRECEDENT]. [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT]. In [PRECEDENT] the principle was stated as follows:
"If a man obtains possession of land claiming under a deed or will, he cannot afterwards set up another title to the land against the will or deed, though it did not operate to pass the land in question and if he remains in possession till twelve years have elapsed and the title, to the testator's heirs is extinguished, he cannot claim, by possession, an interest in the property different from that which he would have taken if the property had passed by the will or deed"
In the case of [PRECEDENT] [ENTITY], J. sitting singly observed:
"In the case of an invalid mortgage however the mortgagee prescribes as such and the result is in the ordinary circumstances that after the period of limitation has expired, he is entitled to retain possession until his mortgage is redeemed. Adverse possession is limited to the intention of the person in possession."
And again in another passage the learned Judge said;
"In [PRECEDENT] where the usufructuary mortgage was for a term of six years or until subsequent redemption, it was held that the mortgagee's possession was adverse to his mortgagor from its inception. In my view the decision depends upon the question whether the possession which the mortgagee asserted, was merely possession qua mortgagee or possession under some title other than mortgagee such as raiyati. In the present instance if no other consideration had arisen, I should have held without hesitation that the appellant prescribed from the inception of the invalid mortgage in 1905 but only qua mortgagee and that the right which accrued to him after the expiry of the statutory period of limitation, was to hold until redeemed".
On the principles stated above, I have no doubt in my mind that what defendants 1 and 2 prescribed for in the present case was the right of a mortgagee and nothing beyond it.
9. Defendant No. 1 and the predecessor-in-interest of defendant No. 2 had entered into the property under certain arrangement arrived at between them and the person actually managing the property of the minor in respect of the limited, interest of a zarpeshgidar in that property, and not in derogation to the absolute tide of the minor, and, therefore, if for some reason or other that arrangement was void in the eye of law, acquisition of title by prescription could and did operate only to the extent of mortgage interest only which was the subject-matter of that arrangement and not beyond that and the subsequent possession of those defendants over toe property, in the absence of any other particular fact or facts, will be traced back in law to the initial arrangement arrived at between them to show that the entry into the absolute title was never hostile, and, therefore, they cannot be allowed thereafter to claim on the basis of that possession over the property, an interest different from that which they would have taken if the contract under the zarpeshgi mortgage deed would have been valid in law, especially in view of the facts of the present case for here at no stage defendants 1 and 2 claimed any interest in the property beyond the limited interest of zarpeshgidars.
Further, I think there is no reason why the limited interest of a zarpeshgi mortgage like any other interest in property cannot be acquired by prescription under [SECTION], of the [ACT] After all, a mortgage is not only a contractual security for loan but is also an interest in the immovable property and as such prescription can be as much a root of title to the limited interest of a zarpeshgi mortgage as a contractual document satisfying the requirements of the [ACT] read with the [ACT], [PRECEDENT].
10. Then there is one more circumstance which deserves consideration in tills case and that is that [ENTITY] was a minor at the time when the mortgage deed on his behalf was executed and when on the basis of that void mortgage deed the mortgagee entered into possession of the property under mortgage. The general rule of law is that where a per-
son enters into possession of property belonging to A person under disability, such as a miner or a lunatic, and the relationship of the parties and the circumstances of the case are such as would, in equity, fasten on the person so entering into possession, a trust actual or constructive, the possession of such person would be presumed to be that of a bailiff or agent of the person under disability, and not adverse to him. Thus, the possession of a de facto guardian would be presumed to be on behalf of the minor as his bailiff or guardian and not adverse to him as laid down in the cases of [PRECEDENT] and [PRECEDENT] as also in the cases of [PRECEDENT] and [PRECEDENT].
In the case of [PRECEDENT] and in Re Biss; Biss v. Biss, (1903) 2 Ch 40 (Z12) this principle was further extended and held that it applied even to a stranger entering into possession of a minor's property. It, however, cannot be denied that the application of this principle must depend upon the circumstances of each case. In the present case, I think, there is nothing on the record to suggest that the defendants under the void mortgage document did any act which can be held to have resulted in their acquisition of an absolute title in the property covered by the void mortgage deed. That being so, I think that the defendants of the suit cannot resist the claim for recovery of possession made in the plaint, by the plaintiffs even with regard to the interest of [ENTITY] in that property,
11. For the reasons set forth above, the judgment of the lower appellate court has to be set aside and the suit decreed in full. The appeal is accordingly allowed with costs throughout.