Guha Ray, J.
1. In this second appeal by the plaintiff the only question for decision is whether the plaintiff is entitled to recover the proportionate share of the mortgage due3 from Gouri-bala, defendant 2 who purchased the 8 annas share of Sushilabala, defendant 1. The facts shortly stated are these.
2. C. S. plot No. 689 of Mouza Mohiary, recorded in Khatian No. 1451, originally belonged to one Nritra Kali Devi who mortgaged it to her brother Dina Nath Dalai for Rs. 150 on 19-1-1914. After her death her son Nanda Lala mortgaged the same property for Rs. 200, to one Hari Pada Nath, husband of the plaintiff on 14-5-1923 and redeemed the mortgage of Dinanath. Subsequently to satisfy the debt of Haripada, Nanda Lal again mortgaged the property to the plaintiff Saila Bala for Rs. 275 on 22-7-1936 and redeemed the mortgage of Haripada. Nandalal died in Pous 1346, leaving his widow Sushilabala, alias Surabala, defendant 1 and Panchanan, pro forma defendant 3. Bach of them thus acquired 8 annas share in Plot No. 689. Panchanan on 19-12-1943 executed in favour of the plaintiff a sale-deed (Ex. l) for a consideration of Es. 700 of which only Rs. 100 was paid in cash, the rest having been set off against the dues under the mortgage of the plaintiff. In this sale deed Panchanan represented himself as the sole heir of his father Nandalal.
Gouribala purchased Sushila's 8 annas share of the plot on 1-5-1944. So, when the plaintiff Sailabala went to take possession of the entire plot, Gouribala resisted and then the plaintiff instituted a Title Suit against her alone in respect of the whole C. S. plot No. 689. The suit was dismissed in toto in the trial Court but in the appellate Court it was decreed in part to the extent of the 8 annas share of Panchanan, and Sailabala was given joint possession of the plot with Gouribala. The plaintiff then instituted the suit out of which this appeal arises for enforcing 8 annas share of her mortgage as against Sushilabala and Gouribala who are the principal defendants, Panchanan being made a pro forma defendant in the suit. The suit was contested by Gouribala. The learned trial Court dismissed the suit on the finding that the entire mortgage had been discharged by the sale of the plot by Panchanan to Sailabala, so that the only remedy which Sailabala would be entitled to would be damages against Panchanan. The learned Lower appellate Court also took the same view and dismissed the appeal. The only question then for decision in this appeal is whether this view is correct.
3. It is contended on behalf of the appellant that although Panchanan purported to convey to Sailabala 16 annas of the plot in question, he was entitled to convey only 8 annas share and Sushilabala obtained effective title only to 8 annas share of that plot as a result of that sale deed, so that what really happened in consequence of the sale deed was that only a half of the mortgage debt stood liquidated and the other half subsisted and it was open to the plaintiff Sailabala to enforce this other half against Sushilabala and her purchaser Gouribala.
4. On behalf of the appellant no direct authority could be cited before me whereas the learned trial Court as well as the learned lower appellate Court relied on a Patina case, reported in 163 Ind. case 391 same as A. I. R. 1936 Pat. 404, Kedar Nath v. Bhagwat Prasad, in which the facts are similar to the facts of this case and in which it was held that the remedy of the mortgagee in a case of this nature where there is a partial failure of the consideration, is to sue the vendor in damages. Before me on behalf of the respondent 2 another case viz., Lachman Prasad v. Lachmeshwar Prasad, A. I. R. 1922 ALL. 76, also has been cited. This also takes the same view.
The learned Advocate for the appellant could not cite any direct authority for the proposition that 8 annas share of the mortgage subsisted even after the sale deed. His contention was that under the last proviso to S. 60, T. P. Act it was open to the mortgagee to break up the integrity of a mortgage where she acquires the share of a mortgagor either in whole or in part and when Panchanan in effect sold to her only a half share of the mortgage property, although he purported to convey the whole, it may be presumed that Sailabala intended to keep 8 annas share of the mortgage alive in order that she might be able later on to realise the dues on this part of the mortgage from the co-mortgagor Sushila. This contention obviously forgets one thing and it is this: that Sailabala at the date of her purchase was not aware of the fact that Panchanan had only 8 annas interest in the property nor was she aware at that time of the fact that Sushila had any share in this property. If she did not know that, she could not possibly have intended to keep half a share of the mortgage alive while taking a conveyance from Panchanan In respect of the 16 annas share of the property. Thus, the learned Advocate for the appellant is asking the Court to presume something which possibly Sailabala could not have thought of in the state of knowledge she had of the matter at the time of her purchase. This contention therefore fails.
5. The learned Advocate for the appellant next referred to Surjiram Marwari v. Barhandeo Parshad, 1 Cal L. J. 337 and to Gurusami Aiyar v. Kaveree Boyee Ammal, 14 Mad. L. J. 485 in both of which the total consideration failed. Where such is the case, certainly a different set of considerations will arise. Here, as I have already pointed! out, the consideration failed only in part and not in toto.
He next referred to Upendra Nath v. Saroda Prosad, 36 Cal. W. N. 696 which was considered in the Patna case I have referred to, and it has been rightly pointed out in that case that there was no merger in the case reported in 36 Cal. W. N. 696 for the original mortgagor Sarada purchased the mortgaged property not alone but together with his brother Narendra, so that that case also can be distinguished on facts from the present one. He also referred to Bisheshur Dial v. Ram Sarup, 22 ALL. 284 where the moiety of the mortgaged property was auction purchased, by the mortgagee of the property in its entirety. It has held in that case that when a mortgagee buys at auction the equity of redemption in a part of the mortgaged property, such purchase has, in the absence of fraud, the effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him, that is to say, a portion of the debt which bears the same ratio to the whole amount of the debt as the value of the property purchased bears to the value of the whole of the property comprised in the mortgage.
The facts of this case are entirely different from the present case. Here, Sailabala purchased the property in its entirety for a consideration of Bs. 700 out of which Rs. 100 was presented in cash to the vendor Panchanan and then subsequently it transpired that Panchanan was entitled to only 8 annas share of the plot in question, so that Sailabala's purchase became effective only to the extent of Panchanan's 8 annas share, it being totally ineffective in respect of Sushilabala's 8 annas share. But although the position ultimately amounted to this, the position created by the sale-deed when it was executed, was a complete extinction of the entire mortgage, although the mortgagee retained with herself the mortgage deed. Once the mortgage is extinguished, it can hardly be revived except where the whole consideration, fails or the deed becomes ineffective in toto and; not in part. When it becomes ineffective in toto, the position is as though the transaction had never taken place, but when it is effective in part the transaction cannot be absolutely ignored nor can it be ignored to the extent of a part and taken notice of in respect of the other part. The position in the Allahabad case is different because there initially the mortgagee of the entire property purchased only a half share of the property at auction. In my opinion, therefore, that case also is distinguishable on facts from the present one. Thus, the available authorities are against the appellant, and on those authorities the question must be held to have been rightly decided by both the Courts below.
6. The appeal must accordingly fail and is dismissed with costs to the appearing respondent.
7. Leave to appeal under clause 15 of the Letters Patent is asked for, and is refused.