JUDGMENT

Mukerji, J. - This case has been referred to a Bench of three Judges for the decision of points of law which will be presently stated. It will be necessary to state briefly the facts of the case in order to see how the law applies and what rule of law will be applicable.

2. The facts that have been found by the lower appellate Court and which, therefore, have been accepted for purposes of the determination of the points of law, are these: There was an usufructuary mortgage of a certain house property made in the year 1873. It was made for the sum of Rs. 1,000. In course of time the property came to be owned by one Damodar who, therefore, represented the original mortgagor. In course of time the mortgagee's interest came to be owned by the defendant, Ragha Mal. Ragha Mal was defendant 1 in the suit. He has since died and is represented on the record by his successors in-title. Damodar executed on 28th February 1901, a deed of sale in favour of Ragha Mal in respect of the mortgaged property for a sum of Rs. 90. The sale-deed was never registered. The mortgagees and, after them, their successors-in-interest, continued to be in possession of the mortgaged property and are still in possession. Damodar died in 1914. His brother and heir, Krishna Ram, by a sale-deed dated 28th January 1919, professed to sell, the properties in suit to the plaintiffs who are the respondents in this appeal. They brought the suit, out of which this appeal has arisen, for redemption.

3. The suit has been met with the plea that the mortgagor sold his rights to the mortgagee by the deed of 1901 and, therefore, no right is left in Krishna Ram or his transferee to sue for redemption. The plaintiffs urge that the sale-deed, being unregistered, was not admissible in evidence and did not transfer any title of Damodar to Ragha Mal and that, therefore, the plea of Ragha Mal that he had become the owner of the property is unmaintainable. On behalf of Ragha Mal it was contended that, conceding that the deed of 1901 did not transfer any title to him, he, at least, begin to hold the property, from 1901, adversely to the mortgagor and that, therefore, by 12 years adverse possession, he acquired the mortgagor's interest in the property, so that nothing was left in 1919, which could be transferred by Krishna Ram to the plaintiffs.

4. These contentions of the parties have led to the framing of the following points for determination by the Bench of three Judges.

I.

5. Whether the document of 28th February 1901 is admissible in evidence for the purpose of showing a change in the character of the possession of the mortgagee?

II.

6. Whether after what happened in 1901, the possession of the mortgagee became adverse and the claim is barred by limitation?

Point No.I.

7. This point involves several subsidiary points. These are:

(a) Whether the interest of Damodar in the mortgaged property was a 'tangible immovable property' or 'intangible property' within the meaning of Section 54, T.P. Act?

(b) If it was 'tangible immovable property', whether the transfer of it by an unregistered document is valid?

(c) Whether, if the interest of Damodar be 'intangible property' and could be transferred only by means of a registered document, the document was inadmissible in evidence, having regard to the provisions of Section 49, Registration Act?

8. If Damodar's interest in the mortgaged property be tangible immovable property the transfer could be effected either by a registered instrument or by delivery of property. As there was no registered document to effect a transfer, the transfer would be effective, if there was a "delivery of property". But the property professed to be sold, was already in the possession of the proposed transferee; it follows that, in the circumstances, there could be no delivery of the property. If a party be already in possession of the property, you cannot deliver the property to him again, without first asking him to vacate the property. This was the view taken in th