Alfred Henry Lionel Leach, C.J.
1. On the 26th August, 1912, one Kesavan granted to the first defendant a usufructuary mortgage of the property in suit. The deed provided that if the mortgage was not redeemed within two years the mortgagee should become the absolute owner of the property. The mortgagor defaulted in payment of the amount due under the mortgage and the first defendant considered himself to be the absolute owner. On the 14th February, 1931, the first defendant and his son purported to mortgage the property to one Devasikamani Mudaliar, who on the 29th August, 1932, assigned the mortgage to the third defendant. The third defendant instituted C. S. No. 121 of 1934 in this Court to recover from the first defendant the amount due on the mortgage. He obtained a decree and in due course the property was put up for sale in the execution proceedings. The plaintiff was the purchaser. When he went to take possession he was resisted by the fourth defendant, the son of Kesavan, and the fifth defendant, who is the son of the fourth defendant. On the 21st July, 1936, the fourth and fifth defendants purported to sell the property to the sixth and seventh defendants. This led the plaintiff to file in the City Civil Court the suit which has given rise to this appeal. He sought a declaration of his title to the property or in the alternative a decree for the return of the money which he had paid for its purchase. The City Civil Court dismissed the suit, but on appeal to this Court it was decreed by Burn, J. The present appeal is under Clause 15 of the Letters Patent from the judgment of the learned Judge. The appellants are the legal representatives of the sixth defendant and the seventh defendant.
2. The learned Judge considered that the clause in the deed of mortgage of the 26th August, 1912, which purported to confer upon the first defendant an absolute title in the event of the mortgagor failing to pay the mortgage debt within two years, had the effect of making his possession adverse at the expiration of the two years and as more than twelve years had elapsed Kesavan's heirs had lost all interest in the property. Burn, J., relied on the decisions of this Court in Usman Khan v. Dasanna : (1912)23MLJ360 and Kandaswami Pillai v. Chinnabha (1920) 40 M.L.J. 105 : I.L.R. Mad. 253. When those decisions are examined, it; is clear that they embody quite a different principle. The principle which does apply in this case is expressed in the decision of the Privy Council in Meharban Khan v. Makhena (1930) 58 M.L.J. 714 : 1930 L.R. 57 IndAp 168 : I.L.R. 11 Lah. 251 (P.C.) and in Perayya v. Venkata I.L.R.(1888) Mad. 403 and Srinivasa Iyengar v. Radhakrishna Pillai (1913)26 M.L.J. 47 : I.L.R. Mad. 667. Unfortunately these cases were not brought to the notice of the learned Judge.
3. Section 60 of the Transfer of Property Act provides that the right to redeem a mortgage can be extinguished by act of the parties, and this provision is to be borne in mind in considering Usman Khan v. Dasanna : (1912)23MLJ360 and Kandaswami Pillai v. Chinnabha (1920) 40 M.L.J. 105 : I.L.R. Mad. 253. In the former of these two cases the mortgage deed provided that, in default of the payment of the mortgage debt within the time fixed, the mortgagee should take possession of the property as the absolute owner. Default was made in the payment of the mortgage debt, but the mortgagee did not go into possession by reason of the mortgage deed, but as the result of an agreement which was entered into after the period stipulated in the mortgage deed for payment. This further document provided for the payment of Rs. 250. The Court held that by reason of this further agreement there was a relinquishment by the mortgagor of all rights to the property. The Court did not place any reliance on the mortgage deed. The decision that the mortgagor had lost title by adverse possession of the mortgagee was based entirely on the subsequent agreement which was lawfully entered into under Section 60 of the Transfer of Property Act. The facts in Kandaswami Pillai v. Chinnabha (1920) 40 M.L.J. 105 : I.L.R. Mad. 545 are analogous. There at a date subsequent to the mortgage, there was an oral agreement whereby the mortgagee retained possession of a portion of the mortgage property as the absolute owner in satisfaction of the mortgage debt. He was in adverse possession for more than twelve years, and following Usman Khan v. Dasanna : (1912)23MLJ360 , the Court held that the suit by the mortgagor for redemption of the property was out of time.
4. In the case before us the plaintiff did set up a subsequent oral agreement between Kesavan and the first defendant, but it was disbelieved by both the trial Court and Burn, J. Therefore the plaintiff can only rely on the stipulation in the mortgage deed itself. It is clear from the judgment of the Privy Council in Meharban. Khan v. Makhena (1930) 58 M.L.J. 714 : 1930 L.R. 57 IndAp 168 : I.L.R. 11 Lah. 251 (P.C.) that this does not help him. In that case there was a usufructuary mortgage, which provided for redemption at the end of 19 years; in default of the payment of the mortgage debt the mortgagee was to have an absolute interest in the property. The Board considered that there was here a clog on the equity of redemption and the provisions of the deed had no more binding force against the assignee of the mortgagor than they had against the mortgagor himself. They were not provisions of general validity avoided against the mortgagor personally by reason of pressure or undue influence brought to bear on him. They were provisions which, when forming part of the actual mortgage contract, had under the general law no validity at all. If it were otherwise an illogical result would follow. The mortgagor, if he redeemed, would escape from the burden, but if he sold to another) he would necessarily bear the burden, as the validity of the provisions as against the assignee would be reflected in the price which he received. This case was from the North-West Frontier Province where the Transfer of Property Act is not in force, but the same principle is applicable where the Act is in force. In Perayya v. Venkata I.L.R. 11(1888) Mad. 403 a Bench of this Court held that a provision in the deed of mortgage that, in default of payment by a certain date, the mortgage should be deemed to be an absolute sale does not amount to an extinguishment of the right of redemption within the meaning of Section 60 of the Transfer of Property Act. It was pointed out there that there was no extinguishment of the right by act of parties when, by virtue of a stipulation contained in the very contract under which the right is created, that right ceases to exist. The decision of this Court in Srinivasa Iyengar v. Radhakrishna Pillai (1913)26 M.L.J. 47 : I.L.R. Mad. 667 was to the same effect and Perayya v. Venkata I.L.R.(1888) Mad. 403 was expressly followed.
5. Therefore the provision in the mortgage deed that the first defendant should be regarded as the absolute owner of the property at the end of two years should the mortgagor fail to redeem the mortgage within that period was absolutely void; and here there has been no subsequent agreement which would bring the case within Usman Khan v. Dasanna (1920) 40 M.L.J. 105 : I.L.R. Mad. 545 or Kandaswami Pillai v. Chinnabha (1920) 40 M.L.J. 105 : I.L.R. 44 Mad. 545. The principle, once a mortgage always a mortgage, applies and Kesavan's heirs have sixty years in which to redeem. That period has not expired and therefore the first defendant and those who stand in his shoes can only be regarded as mortgagees.
6. The appeal will be allowed and the suit dismissed with costs of the appellant against the plaintiff who is now represented by respondents 1 to 4 throughout.