1. (Appeal 145 of 1906).--The plaintiffs' predecessors in title gave a usufructuary mortgage to the first defendant and the second defendant's father for Rs, 24,600 in the year 1882. Part of the consideration for the bond consisted of Rs. 17,000 stated to be due under decrees previously obtained against the mortgagors. It is contended for the plaintiff that this sum was in excess of the amount actually due under the decrees and that the agreement to pay was in contravention of Section 257 (a) of the old code and therefore void. The Court below has given no finding on the question no evidence having bean taken on the point. Assuming the plaintiff's contention to be well founded, the further point arises whether the defendants having been in possession for more than 12 years under the usufructuary mortgage for Rs. 24,600, they have acquired a prescriptive title to that mortgage interest. The District Judge has decided in their favour. On appeal it is argued for the appellant that there was a good usufructuary mortgage for Rs. 7,600 at all events, and, the possession of the mortgages having commenced under a valid mortgage for that sum, the defendants could not by assertion of a larger interest acquire a prescriptive title to it.
2. The first question we have then to consider is whether there is a good usufructuary mortgage for Rs. 7,600. There is nothing to show as pointed out in Srinivasa Swami Aiyangar v. Athmarama Aiyn I.L.R. (1909) Mad. 281, that the parties expressly stipulated that the mortgage should not take effect unless the whole consideration was really and validly given by the mortgagee. It cannot be said that there is an implied understanding in the cafe of every mortgage where less than the full consideration is advanced by the mortgage that the mortgage should full through unless the balance of the consideration is made good. It may also be that, if there is an agreement to advance the full consideration for the mortgage and there is a breach of the agreement on the part of the mortgagee, Section 39 of the Indian Contract Act will as suggested in Subba Rau v. Devu Shetti I.L.R. (1895) Mad. 126, justify the mortgagor in piftting an end to the contract of mortgage. It seems to us that the mortgagor may treat the mortgage as good to the extent of the consideration received and sue for damages for non-payment of the balance as suggested in Anakaran Kasmi v. Saidamadath Avulla I.L.R. (1879) Mad. 79 and expressly decided in Chinnayya Rawuthanv, Chidambaram Chetti I.L.R. (1880) Mad. 212. Us may allow the mortgagee to treat the mortgage as good and to sue the mortgagor for sale as in Rajani Kumar Dass v. Gaur Kishore Shaha I.L.R. (1908) Calc. 1051 or for foreclosure as in Munshi Bajranji Sahai v. Udit Narain Singh 10 C.W.N. 932. The decision in Subba Ran v. Devu Shetti I.L.R. (1895) Mad. 126 which treated the mortgage as invalid because part only of the consideration agreed upon was advanced was based on the view that the mortgagor cancelled the mortgage and the mortgagee had acquiesced in the cancellation. Where part of the consideration is void, or fails, or the mortgagee makes default in paying it, the right principle seems to be that the mortgage is good to the extent of the consideration that has validly passed. In Jones on Mortgages, Vol. I, Section 378, the rule is thus stated 'If the mortgagee advance only a part of the sum contemplated in the mortgage it is a valid security for so much as he does advance and for so much only. For the advances actually made the mortgage is good against the mortgagor's assignee in bankruptcy.' A number of American cases are cited at the foot in support of the above principle. Mr. K. Srinivasa Aiyangar who appeared for the respondents pressed upon our attention the case of Walker v. Carleton 97 Ill., 182 as a decision in his favour. Apart from the fact that the decision is adversely criticised by the learned author, the case appears to be clearly distinguishable because the mortgagor gave a separate note payable in a shorter time for the part of the consideration, which was all that was advanced. Putting aside this case therefore as inapplicable the whole weight of authority appears to be in favour of the rule enunciated in the passage cited. Mr. Srinivasa Aiyangar further contended that to give effect to the mortgage as good for the consideration actually given would be to make a new contract between the parties. We do not think the argument is sustainable. It would be perfectly open to the mortgagor as already pointed out, treating the whole contract as valid and enforceable, to recover damages for the partial breach If then the mortgage of the entire property for the consideration that validly paged between the parties is a valid transaction, there is no foundation for the further contention that the mortgagees have acquired a prescriptive title to the usufructuary mortgage interest of Rs. 24,600. If the defendants were entitled to remain in possession as mortgagees under the valid mortgage for Rs. 7,600 time could not run in favour of the defendants for the acquisition of a larger interest by their mere assertion of it to the knowledge of the mortgagor. Under the terms of the mortgage instrument exhibit A, interest was payable at 8 annas par cent per menaem.. The usufructuary mortgage of the property was till the principal and interest were paid off. The income of the entire mortgaged property receivable by the mortgagees was fixed at Rs. 1,764, out of which Rs. 1,476 was to be appropriated towards interest, estimated to be due at the rate mentioned and the balance of Rs. 233 towards the Peish kistc. If the consideration for the mortgage became void to the extent of Rs 17.000, a proportionate amount of the annual interest would not be payable cut of the income fixed, but under Section 76 of the Transfer of Property Act, Clause 6, the sum was liable to be debited against the mortgagee in reduction of the principal sum due under the mortgage. But whether this is so or not, the question as to what becomes of the available surplus does not affect the relation of mortgagee. Notwithstanding then the invalidity of part of the consideration that the mortgagee's right to possession under the mortgage remains. Article 148 applies to a suit for redemption or for recovery of possession of immoveable property mortgaged. Notwithstanding any assertion by the mortgagee of a larger interest than was validly passed to him under the mortgage, Article 144 has no application where other special provision is made by the Limitation Act for a suit for possession of immoveable property. It cannot be denied that Article 148 is such a provision The mortgagor's right of redemption is not extinguished, and as the whole property bad been validly mortgaged the sixty years period under Article 148 applies. This was the decision of the Privy Council in Khiarajmal v. Daim (1805) I.L.R. 32 Calc. 296 (P.C.). The mortgagees were bound to pay part of the income of the mortgaged property of which they had possession as a subsistence allowance to the mortgagor. Under an invalid sale the mortgagees purchased the mortgagor's interest though the sale was in somebody else's name benami for them, The Privy Council said 'as between mortgagor and mortgagee neither exclusive possession by the mortgagee for any length of time short of the statutory period of sixty years nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem.' This view was followed in Muzaffar Ali Khan v. Parbati I.L.R. (1907) All. 640. The same principle was applied in Ali Muhammad v. Lalta Bakhsh I.L.R. (1878) All 655, Rairu Nayar v. Moidin I.L.R. (1890) Mad. 39 and Byari v. Puttanna I.L.R. (1891) Mad. 38. As the mortgagor has a subsisting right to redeem and to recover possession the mortgagee cannot prescribe for a larger interest, we must set aside the decree of the Subordinate Court and remand the case for disposal according to law. The cost hitherto incurred will abide and follow the result.