Adverse possession can extinguish the right to mortgage a property, as established by the legal provisions and precedents cited by the court.

1. The plaintiff sues for recovery of Rs. 10,628,, principal and interest said to be due to him upon a mortgage bond executed on the 19th June 1888 by one Nidashah, deceased, and the first defendant jointly for Rs. 5,000.

2. The defendants Nos. 2 to 5 have been made parties as being persons in possession of or claiming interest in the village of Ponmanatham mortgaged under the document sued on.

3. The first defendant admitted the plaintiffs claim. The second and third defendants contested the suit. Seven issues were raised [3^4] and evidence was adduced by the parties on the various questions in controversy between them.

4. The Subordinate Judge dismissed the plaintiffs claim on the ground that the bond sued on and the previous transactions which led up to it were unsupported by any consideration, and had been got up collusively in the names of the plaintiff and certain others who are his relations by the plaintiffs seventh witness, Subramania Ayyar, formerly the agent of Nidashah.

5. The plaintiff appeals and the important question for our determination is whether the plaintiff is entitled to proceed against the mortgaged property. We think that he is not; for, we find that the defendants Nos. 2 and 3 held, as pleaded by them, possession of the village in question adversely to Nidashah through whom the plaintiff and the first defendant claim, for more than the statutory period prior to the date of the bond sued upon ; and that, consequently, neither Nidashah nor the first defendant had any right at the time the bond was executed to mortgage the village so as to bind it in the hands of the second and third defendants.

6. Issues Nos. 3 and 4 taken together raise the point under consideration. The Subordinate Judge did not formally record a finding upon the third issue regarding possession. But in dealing with the question whether there was consideration for the bond, he has fully discussed the evidence on the question of possession also, and arrived at the conclusion that the village in dispute was never in the occupation of Nidashah or the first defendant after it was handed over by the former to the second defendant in January 1871 under Exhibit II, and that the second and third defendants have ever since held the property claiming to be entitled thereto under it.

7. Up to the execution of this document (Exhibit II), Nidashah was admittedly the manager of a Mahomedan religious institution called Thas Brak Thaikal in Tiruvalur. He held the village in question, which forms part of the endowments belonging to that institution, with the rest of the properties attached to the Thaikal. Being very old and infirm Nidashah executed on the 11th January 1871, Exhibit II, to the second defendant, his nephew, authorizing the latter to take possession of the Thaikal and its properties on behalf of the third defendant, who is second defendants son. The instrument after reciting that Nidashah had taken the third defendant in adoption and had brought him up as his son, provides that the second defendant should assume the management of the Thaikal and its properties on behalf of the third defendant, who was then a minor, receive the rents and profits accruing from the endowments and account for the same to the third defendant when he becomes a major. Under this document the second defendant entered into possession at once, and continued to manage the properties without any dispute for some time. In 1873 quarrels appear to have arisen between Nidashah and the second defendant. The following year Nidashah issued notices purporting to cancel the arrangement made under Exhibit II and stating that he had resumed the management. The second defendant, however, resisted these attempts to interfere with his possession of the Thaikal and its endowments including the village in question. It is admitted on behalf of the plaintiff that the second defendant held possession from 1871 till the end of 1884. But it is urged on his behalf that in 1885, the sec