Judgment :- 1. This appeal comes up before us on a reference by Krishnamoorthy Iyer J. Interesting questions as to the nature of the transaction evidenced by Ext.B1, Illidarwar deed and whether the jural relationship created by the same has been extinguished and if extinguished what rights the parties have in respect of the properties covered by that document, arise for consideration. The short facts on which the aforesaid questions arise are: Two items of properties, 51 cents in Sy. No. 100/5 and another 59 cents in Sy. No. 100/6, situate in Pallikkara Gramam belonged to deceased Mammunhi. Mariyumma, Asyumma and Abammad Kunhi are his children by his first marriage. Plaintiff is the son of Asyumma. By his second wife, Pathu, he has a daughter Aissabi, who is the 2nd defendant in this case. After the death of Mammunhi Ext. BI Illidarwar deed was executed by all the heirs of Mammunhi, i. e., the three children by his first wife represented by their mother as guardian, and the widow (the second wife) Pathu, who joined the execution of Ext. B1 in her own capacity and as guardian of the 2nd defendant. The consideration for the transaction was Rs. 565/- and was in favour of the 1st defendant herein who was the sole respondent in this second appeal. He died pending this second appeal and his legal representatives were impleaded as additional respondents Nos. 2 to 7. A term of 55 years was fixed in Ext. BI which was on 15 41925. The 1st defendant was as per that document allowed to effect improvements, construct buildings, dig wells and enjoy the property. It was provided therein that after the expiry of the term the mortgage-money of Rs. 565/- would be paid along with the compensation for improvements effected and constructions made, and the property redeemed. Subsequently, by Ext. B42 dated 14-4-1949 Mammunhi's two children (Mariyumma and Ahammad Kunhi) through their guardian, their mother, sold the share they had in the properties to the 1st defendant. It was stated in that document that the executants have 4/5th share in the property. The consideration recited is Rs. 600/- of which Rs. 452/-was adjusted in partial satisfaction of the mortgage amount; Rs. 148/-was received in cash. Immediately thereafter, on 19-4-1949 the widow of Mammunhi (second wife) and her daughter (2nd defendant) sold to the 1st defendant as per Ext. The consideration recited is Rs. 600/- of which Rs. 452/-was adjusted in partial satisfaction of the mortgage amount; Rs. 148/-was received in cash. Immediately thereafter, on 19-4-1949 the widow of Mammunhi (second wife) and her daughter (2nd defendant) sold to the 1st defendant as per Ext. B43 their rights in the properties stating their share in them as 1/5th. The consideration was Rs. 200/- of which Rs. 113/- was adjusted towards balance mortgage amount and Rs. 87/-was reserved to be paid subsequently. It may be noted that one of the heirs of Mammunhi, Asyumma, was not a party either to Ext.B42 or to Ext. B43, and as such her interest in the properties was not conveyed to the 1st defendant, though the two documents between themselves purported to convey the whole of the property. It is the admitted case before us that Asyumma had 7/48 shares, and that all the other heirs together have only 41/48 shares in the properties. 2. Plaintiff, son of Asyumma, filed the suit claiming that Asyumma had an undivided 1/4th right over the suit property, which right devolved on him on her death as her heir and legal representative. According to the plaint averments as it originally stood, the 1st defendant had purchased the remaining 3/4th share. The plaintiff alleged that he is in constructive possession and enjoyment of the suit properties with the 1st defendant as a co-owner. On that basis he prayed for partition and separate possession of 1/4th share in the properties. He also claimed proportionate income. The 1st defendant contested the suit setting up his rights under Ext. BI Illidarwar deed and subsequent sales, Exts. B42 and B43. According to the 1st defendant the plaintiff would be entitled to recovery of possession of only his share and that only on redeeming Ext. BI Illidarwar deed. After the filing of the written statement the plaintiff was allowed to amend the plaint whereby the 2nd defendant was impleaded in the suit. Thereupon an additional written statement was filed by the 1st defendant wherein he claimed that Ext. BI transaction is one coming within the purview of S.10(v) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964). Thereupon an additional written statement was filed by the 1st defendant wherein he claimed that Ext. BI transaction is one coming within the purview of S.10(v) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964). He, also, in the alternative claimed that if redemption is decreed he would be entitled, besides the mortgage money, also to compensation for improvements the details of which be had already given in the first written statement. The plaintiff again amended the plaint alleging that the integrity of the mortgage was split up by the two sales, Exts. B42 and B43, and that therefore he is entitled to redeem his share on payment of proportionate mortgage amount. After the arguments were over the plaint was further amended. As the plaint now stands, it is the plaintiff's case that Ext. BI transaction stands extinguished for the reason that the 1st defendant has received the full mortgage amount as per the two sales Exts. B42 and B43; the plaintiff, therefore claims that he is entitled to recovery of possession of his share without payment of any amount. 3. The trial court held that Ext. BI contains a personal covenant to pay the mortgage money and therefore it is not a usufructuary mortgage as defined in the Transfer of Property Act; consequently the trial court held that the 1st defendant is to be deemed to be a tenant under S.10(v) of the Land Reforms Act. The trial court further held that by Exts. B42 and B43 sales Ext. BI transaction was extinguished. It was also held that the 1st defendant acquired full right over the equity of redemption. The claim for subrogation put forward by the 1st defendant was found against him by the trial court. That court also held that a portion of the mortgage debt is subsisting and that the plaintiff is entitled to recovery of possession of his share of the property without payment of any further amount towards the mortgage-money. The trial court accepted the Commissioner's report Exts. Cl and C2 whereby the value of improvements was assessed. The learned Munsiff also held that the plaintiff is entitled to proportionate mesne profits. Ultimately the lower court passed a preliminary decree for partition allowing the plaintiff to recover 7/48 share. The lower appellate court in reversal of the decree passed by the learned Munsiff dismissed the suit. Cl and C2 whereby the value of improvements was assessed. The learned Munsiff also held that the plaintiff is entitled to proportionate mesne profits. Ultimately the lower court passed a preliminary decree for partition allowing the plaintiff to recover 7/48 share. The lower appellate court in reversal of the decree passed by the learned Munsiff dismissed the suit. The finding that the 1st defendant is a'deemed tenant' entitled to protection under S.10 (v) of the Land Reforms Act, was upheld. On the question of extinguishment of Ext. BI transaction, the lower appellate court was of the view that the same was extinguished only to the extent of 41/48 share. However, in view of the finding of the lower appellate court agreeing with the learned Munsiff that the 1st defendant is entitled to fixity of tenure it was held that the plaintiff is not entitled to redeem or recover possession of 7/48 share. The plaintiff has come up in appeal before us. 4. The main question that arises for consideration is as to whether the respondents are entitled to the benefits of S.10 (v) of the Land Reforms Act. That section is as follows: "10. Certain other persons to be deemed tenants. Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of Court, the following classes of persons shall be deemed to be tenants: xx xx xx xx (v) a person holding land situated in any part of the taluk of Hosdurg or Kasaragod to which the Malabar Tenancy Act. 1929, did not extend; under a transaction described in the document evidencing it as bhogya, Otti, nattotti, arwar, illidarwar or krithasartha illidarwar, but not being a usufructuary mortgage as defined in the Transfer of Property, Act, 1882." The answer to the question posed above will depend upon the answer to the further question, whether Ext. BI is a usufructuary mortgage as defined in the Transfer of Property Act, 1882. BI is a usufructuary mortgage as defined in the Transfer of Property Act, 1882. Before adverting to the document itself it is necessary to see the definition of "usufructuary mortgage" in S.58 (d) of the Transfer of Property Act, 1882, which reads: "(d) Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee." It will be seen that the essential ingredients of an usufructuary mortgage as defined in S.58 (d) read above are: delivery of possession by the mortgagor or binding himself to deliver possession of the mortgaged property to the mortgagee: the mortgagee's right to retain possession until payment of the mortgage-money; and his further right to receive rents and profits accruing from the property or part thereof and to appropriate the same towards interest, payment of mortgage money or partly in lieu of interest or partly in payment of the mortgage-money. "Mortgage-money" is defined in S.58 (a) second paragraph as "the principal money and interest of which payment is secured for the time being." We will have to examine whether Ext. BI illidarwar satisfies the three ingredients, stated above. We are of the view that the second ingredient, viz., the right of the mortgagee to retain possession of the mortgage holding till payment of mortgage money which necessarily imports a corresponding right on the mortgagor to recover possession of the property on payment of the mortgage-money, is not satisfied so far as Ext. BI transaction is concerned. The corresponding right referred to above of the mortgagor to recover possession of the property on payment of the mortgage-money necessarily takes us to S.62 of the Transfer of Property Act, which is as follows: "62. BI transaction is concerned. The corresponding right referred to above of the mortgagor to recover possession of the property on payment of the mortgage-money necessarily takes us to S.62 of the Transfer of Property Act, which is as follows: "62. In the case of a usufructuary mortgagee, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (a) Where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, when such money is paid; (b) where the mortgagee is authorized to pay himself from such rents and profits or any part thereof a part only of the mortgage-money when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in Court as hereinafter provided." That section provides that in the case of a usufructuary mortgage the mortgagor is entitled to recover possession of the property when the mortgage-money is paid by the mortgagee appropriating to himself the rents and profits derived from the property where the mortgagee is authorised to resort to that method; and in a case where he need appropriate rents and profits or part thereof towards only part of the mortgage-money, then if a term is prescribed for the payment of the mortgage-money on expiry of that term and on payment of tender of the mortgage-money or balance thereof. Therefore, if the mortgagee is authorised to retain possession of the mortgage holding not only till payment of mortgage-money but till payment of something more than that, in our view, such a transaction will not be a usufructuary mortgage as defined in S.58 (d) of the Transfer of Property Act, 1882. 5. The learned counsel for the appellant referred us to two unreported decisions of this Court, viz., S.A. No. 1125 of 1968 and S.A. No. 183 of 1969. 5. The learned counsel for the appellant referred us to two unreported decisions of this Court, viz., S.A. No. 1125 of 1968 and S.A. No. 183 of 1969. The former decision is by Raghavan C. J. and Kurup J., and the latter by one of us (Nambiyar J.) and Krishnamoorthy Iyer J. In those cases the question that arose for decision was whether there existed a personal covenant by the mortgagor to pay the mortgage money so as to take the transactions discussed in those cases outside S.58 (b) of the Transfer of Property Act. In the first of the aforesaid cases it was held that the mere provision for redemption on payment of mortgage amount at the end of the term fixed will rot amount to a personal covenant whereby the mortgagor is obliged to pay the amount at a stipulated time and that such a provision will not confer on the mortgagee the right to recover the amount on that particular date. Kurup-J. who delivered the judgment of the Court referred to the decision of Nambiyar J. in S. A. No. 183 of 1969 wherein it was pointed out that such a 'clause marks the earliest point of time at which the right of redemption accrues to the mortgagor and at which he may proceed to redeem the property on payment of the mortgage money'. We may also usefully advert to another passage in S.A. No. 183 of 1969 which makes the position more clear. That passage is "We do not think that the clause in question even accepting the translation as given in the appellate court's judgment imposes any obligation on the mortgagor to tender the mortgage amount at any stipulated time, which is enforceable at the instance of the mortgagee." Personal covenant in a transaction of possessory mortgage will certainly take that transaction beyond the purview of S.58(d) of the Transfer of Property Act. We are in respectful agreement with the principle laid down in the unreported cases referred to. However, we do not think that these decisions are of any assistance to the appellant here. Here, the question is different and is about the second ingredient of a usufructuary mortgage as defined in the Transfer of Property Act, 6. Learned counsel also relied on the Single Bench decision of this Court in Ganapathi Bhatta v. Umavathi (1965 KLT. 903). However, we do not think that these decisions are of any assistance to the appellant here. Here, the question is different and is about the second ingredient of a usufructuary mortgage as defined in the Transfer of Property Act, 6. Learned counsel also relied on the Single Bench decision of this Court in Ganapathi Bhatta v. Umavathi (1965 KLT. 903). That case also related to a transaction evidenced by an Illidarwar deed. As in this case in that case also the document authorised the mortgagee to effect improvements on the property and. provided that the mortgage money and the value of improvements would be paid simultaneously at the time of redemption. Madhavan Nair J. held: "The provision for improvement of the property by the mortgagee with right to get the cost thereof along with the mortgage amount at redemption would not, in my view, affect the nature of a mortgage. S.63 (a) of the Transfer of Property Act dealing with improvements and payment of compensation therefor is general to all possessory mortgages. Whenever any provision of Chapter IV of the Transfer of Property Act relates to a particular kind of mortgage the Legislature has made it clear in the enactment. Thus S, 62 begins with the expression "in the case of usufructuary mortgage"; S.67 confines foreclosure to English mortgages and mortgages by conditional sale and S.69 limits the right of sale to English mortgage; but S.63 (a) does not make any such limitation. I would therefore regard the provisions of S.63 (a) as a general incident of mortgages. The fact that improvement of property has been provided for in a usufructuary mortgage would not therefore affect the nature of the mortgage. The distinctive test of a usufructuary mortgage is the absence of a right in the mortgagee to claim mortgage money against the mortgagor. There is no provision in Ext. P6 entitling the mortgagee to claim the mortgage money from the mortgagor or to bring to sale the property for realisation of the mortgage amount. Considerable reliance was placed on the provision in the deed that on payment of the mortgage money on any Vishu Sankramana day after the expiry of the term (of ten years stipulated in the deed) the mortgage money together with the cost of improvements might be paid in a lump and the property redeemed. Considerable reliance was placed on the provision in the deed that on payment of the mortgage money on any Vishu Sankramana day after the expiry of the term (of ten years stipulated in the deed) the mortgage money together with the cost of improvements might be paid in a lump and the property redeemed. The very definition of a usufructuary mortgage in the Transfer of Property Act contemplates, as a feature of the usufructuary mortgage, a provision for retention of possession till payment of the mortgage money. No particular date is stipulated in Ext. P6 for payment of the mortgage money. There is therefore no obligatory covenant on the part of the mortgagor to pay the mortgage money." With respect, we confess, our inability to agree to the above proposition wholly. That decision has not taken note of the definition of "mortgage-money" in the second paragraph of S.58(a). In view of the definition clause in the section itself we are unable to hold that the term "mortgage-money" in S.58(d) includes compensation for improvements effected by the mortgagee. In this connection it may not be quite out of place to point out that before the amendment of R.11 of Order XXXIV of the Code of Civil Procedure there was a sharp difference of opinion even as to whether interest accruing due on the mortgage money after due date would form part of the "mortgage-money" as defined in the Transfer of Property Act. The following extract from Mulla's Commentaries on the Transfer of Property Act, sixth Edition, pages 374-375 refers to this conflict: "Mortgage money. This expression is defined in S.58(a) as the principal money and the interest, the payment of which is secured for the lime being. There were conflicting decisions as to whether the interest referred to in this section included interest after due date awarded by way of damages or under the Interest Act. Some courts held that it did while others held that it did not and that interest awarded by way of damages was not recoverable out of the mortgaged property, but was to be treated as a decree for damages. The amended 0.34, R.11, of the Code of Civil Procedure now makes it clear that such interest is included in "mortgage money". The amended 0.34, R.11, of the Code of Civil Procedure now makes it clear that such interest is included in "mortgage money". If the position with reference to interest accruing due on the principal money after due date was as aforesaid, we are of the view that compensation for improvements is certainly not part of the 'mortgage-money' as defined in the second paragraph of S.58(a) of the Transfer of Property Act. The payment of such compensation is not secured by the deed, and there is only a promise to pay it along with the mortgage-money, for realization of either of which the mortgagee cannot bring a suit. Where the mortgagee is allowed and authorised to retain possession of the mortgage holding till payment of the value of improvements also along with the mortgage money, such a transaction would therefore be outside the purview of S.58 (d) of the Transfer of Property Act. The learned judge in Ganapathi Bhatta's case relied on S.63 (a) (this is obviously a clerical mistake for S.63A) of the Transfer of Property Act. S.63A in our view does not enable the mortgagee to claim value of improvements. Sub section (1) of that section specifically provides that, all such improvements shall 'in the absence of a contract to the contrary' on redemption belong to the mortgagor, and that he shall not be liable to pay the costs thereof except as provided in sub-section (2) which stipulates that where such improvement is effected by a mortgagee in possession for preserving the property from destruction or deterioration, or to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor will be liable to pay the 'proper cost' thereof. The statutory right of the mortgagee under S.63A (2) is only for 'proper cost' of the improvements effected in circumstances detailed in that section. The statutory right of the mortgagee under S.63A (2) is only for 'proper cost' of the improvements effected in circumstances detailed in that section. On the other hand when the mortgage deed authorises the mortgagee to effect improvements and mortgagor promises to pay the compensation for the same along with the 'mortgage-money', the obligation to pay such compensation arises out of contract of the parties; and that obligation is to pay full compensation assessed as per statutory law if any, and in the absence of any statutory law, as per the agreement of parties or common law of the land and when the mortgagee is authorised to retain possession till payment of such compensation also, that is a provision in derogation of the provisions of Ss.58(d) and 62 of the Transfer of Property Act. Just like the presence of a personal covenant will take a possessory mortgage outside the defraitson referred to above, the presence of a stipulation authorising the mortgagee to retain possession, not only till the 'mortgage' money is paid, but, something more than that is done, will also take a possessory mortgage beyond the terms of S.58 (d) of the Transfer of Property Act. 7. The view we expressed in the preceding paragraph is strengthened by the other provisions of the Transfer of Property Act relating to possessory mortgages. We have already referred to S.62 and 63A. We may also refer to S.63 of the T.P. Act dealing with accession to mortgaged property. This section like S.63A is general in terms, applicable to all possessory mortgages, and is not confined to usufructuary mortgages. The second paragraph of that section dealing with acquired accession, i. e., accession acquired at the expense of the mortgagee, provides that if such acquired accession is capable of separate possession or enjoyment without detriment to the principal property, the mortgagee is entitled to remove them without injury to the mortgage holding unless the mortgagor pays the mortgagee the expense of acquiring it. That paragraph further provides that if separate possession or enjoyment is not possible, such accession must be delivered with the property to the mortgagor unless the acquisition of such accession was necessary to preserve the property from destruction, forfeiture, or sale, or made with his assent. Hence again the mortgagor's liability is only to pay the 'proper cost thereof'. That paragraph further provides that if separate possession or enjoyment is not possible, such accession must be delivered with the property to the mortgagor unless the acquisition of such accession was necessary to preserve the property from destruction, forfeiture, or sale, or made with his assent. Hence again the mortgagor's liability is only to pay the 'proper cost thereof'. These words occur in S.63A as well, and have been understood to mean the 'actual expenses or costs' incurred for effecting improvements. Referring to S.63A, Rajamannar J. (as he then was) said in Sundaram Aiyar v. Valia Mannadiar (AIR. 1947 Madras 197) at 202: "The only question therefore is whether there is a contract to the contrary which entitles the mortgagee to be reimbursed in the expenses incurred by him in making the improvements." (Paragraph 20) "We think that in a case where a mortgagee seeks to make the mortgagor liable for a large amount as cost of improvements, it is the duty of the mortgagee to establish by indubitable evidence the fact of the execution of such improvements and the actual expenses incurred by him for effecting them." (Paragraph 23) In other words, the statutory right of the mortgagee to get 'proper cost' is only the right to get the out of pocket expenses incurred by the mortgagee for effecting improvements, and not the value of or compensation for improvements, which is assessed on the basis that the mortgagee as the owner of these improvements is selling them to the mortgagor. 8. Further it is doubtful whether the 'proper cost' of improvements or acquired accessions contemplated by S.63A and 63 respectively would in all cases form part of the mortgage money. Under S.72 of the Transfer of Property Act only such expenses incurred by the mortgagee as were necessary for the preservation of the mortgaged property from destruction, forfeiture or sale, or for supporting the mortgagor's title to the property, or for making his own title good against the mortgagor, or for obtaining renewal of the lease (where the mortgage holding is a leasehold), and any insurance premium (in case where the property by its nature is insurable) paid, could be added on to the principal money. It is to be noticed that the right of the mortgagee for value of improvements arising out of the contract between the parties, stands entirely on a different footing. 9. It is to be noticed that the right of the mortgagee for value of improvements arising out of the contract between the parties, stands entirely on a different footing. 9. From the provisions discussed above it is clear that in the case of a pure and simple usufructuary mortgage, the mortgagor need pay on redemption for recovery of possession of the mortgage holding only the mortgage money as defined in S.58 (a) and such of the amounts as can be added on to the principal money under the provisions of the Transfer of Property Act, but not compensation for or value of improvements payable as per the agreement of parties. The presence of such an agreement will therefore make the transaction some thing other than a usufructuary mortgage, pure and simple, as defined in S.58 (d) of the Transfer of Property Act. For the aforesaid reasons we are, with respect, unable to agree with Madhavan Nair J. according to whom the provision for improvement of property and payment therefor along with the mortgage money would not alter the nature of the mortgage. We may here profitably notice an early decision of the Madras High Court which throws much light on the character and nature of an illidarwar transaction. We refer to the following discussion in the decision of Kindersley and Tarrant JJ. in Perlathail Subba Ran v. Mankude Narayana (ILR. 4 Madras 113): "In the case of an Iladarawara for a long term of years, the mortgagee hopes, by careful cultivation and improvement of the soil, to make a profit, which would not represent the interest on the loan, but the return for his own industry and expenditure on the land; and for this purpose it is essentially necessary that he should have possession till the end of the term. In such a case it could not be maintained that justice would be done to the mortgagee by repaying the loan before the expiration of the term. In the case of Mashook Ameen Zuzzada v. Marem Reddi, 8 M.M.C.R.31, the late Chief justice said: "If we find here that the transaction was a mortgage, then justice will be done by allowing the money to be paid. In the case of Mashook Ameen Zuzzada v. Marem Reddi, 8 M.M.C.R.31, the late Chief justice said: "If we find here that the transaction was a mortgage, then justice will be done by allowing the money to be paid. If, on the other hand, we find that it was practically a sale of the property for 55 years, then I cannot be set aside." It appears to us that in South Canara an Iladarawara is usually something more than an ordinary mortgage, which is called by another name. When, as in the present case, the Iladarawara is for a long term of years, it amounts to a lease of the property for the term agreed upon, and justice cannot be done by the repayment of the loan before the expiry of the term. But the terms of the document in each case will determine whether the intention is to create such a lease". The learned judges have in the above decision characterised an Illidarwar transaction in South Canara as something more than an ordinary mortgage, as a 'sale of the property for the term', and, even, as amounting to a lease, depending upon the terms of the document in each case. This decision further strengthens our view that an Illidarwar transaction for a long term providing for making improvements and containing a promise to pay compensation for the same on recovery of possession is not a usufructuary mortgage pure and simple, as defined in the Transfer of Property Act. 10. With this in view we will examine Ext. BI document. That document as earlier stated provides: The provision extracted above provides for payment of the mortgage money of Rs. 565/-, value of improvements, cost of construction of the building and cost of digging wells simultaneously when recovery of possession is sought for after the expiry of the term of 55 years. The property is situate in Kasaragod Taluk; the transaction is described in the document Ext. B1 as Illidarwar; as earlier pointed out the transaction is not a usufructuary mortgage as defined in S.58(d) of the Transfer of Property Act, 1882; we therefore hold that the 1st defendant and his heirs, Nos. 2 to 7, are to be deemed to be tenants under S 10(1) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), and that respondents are entitled to fixity of tenure under S.13 of that Act. 2 to 7, are to be deemed to be tenants under S 10(1) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), and that respondents are entitled to fixity of tenure under S.13 of that Act. 11. In view of our conclusion that respondents are entitled to fixity of tenure, the plaintiff is not entitled to recovery of possession and the questions as to whether by Exts. B42 and B43 sales, Ext. B1 transaction was extinguished and if extinguished, what rights the parties have in respect of the properties covered by Ext. B1, have become purely academic. However, vehement arguments were advanced by the learned counsel for the appellant attacking the finding of the lower appellate court that Ext. B1 transaction was extinguished only to the extent of 41/48 shares, though those two sale deeds purported to convey the whole and full ownership in the mortgage holding to the 1st defendant, and mortgage amount was stated to be satisfied fully by adjustment of the sale prices. It is therefore but proper (and is necessary for the sake of completeness) to advert to this aspect of the case. The learned counsel relied on Lachhmnn v. Lachmeshwar (AIR 1922 Allahabad 76), Kedar Nath v. Bhagwat Prasad (AIR. 1936 Patna 404) and Saila Bala v. Gouri Bala (AIR. 1952 Calcutta 749) The first two decisions need not detain us very long. Those two decisions are examples of the application of the principle that where property is lost due to vendor's defective title vendee's cause of action is for damages for breach of the implied covenant for title which has got statutory recognition in S.55(2) of the Transfer of Property Act. In bath these cases, the mortgagee purchased the mortgaged properties, adjusting part of the sale consideration towards the mortgage amount secured by the same properties. Portion of the purchased properties were on the date of sale already sold in execution of money decrees, and thus there was failure of consideration for sale to that extent. It was held that the vendee's cause of action is one for damages against the vendor (who was unable to convey good title in respect of all the properties sold) for failure of consideration for sale and not to fall back upon the mortgage which was extinguished by new contract, viz, sale and seek enforcement of his rights based thereon. It was held that the vendee's cause of action is one for damages against the vendor (who was unable to convey good title in respect of all the properties sold) for failure of consideration for sale and not to fall back upon the mortgage which was extinguished by new contract, viz, sale and seek enforcement of his rights based thereon. The principle was stated to be, with respect, and correctly so, that there was only a partial failure of consideration under the sale deeds. In the third of the aforesaid cases the Calcutta High Court applied the principles laid down by the Allahabad and Patna decisions, we are afraid, to an entirely different set of facts. In the Calcutta case, as in the case before us, one of the two co-owners (widow of the deceased mortgagor) did not convey her share to the mortgagee. The other co-owner, son, purported to sell to the mortgagee the whole of the property representing himself to be the sole heir of the father, the mortgagor. The widow sold her share to one Gouribala who resisted the vendee of the property from the son from taking possession. Thereupon the latter instituted a title suit which was dismissed. The mortgagee-purchaser then sought to fall back upon his mortgage and to enforce his mortgage rights in respect of the property. The lower courts held that the entire mortgage had been discharged by sale of the properties by one of the two heirs of the mortgagor to the mortgagee. This was upheld by Guha Ray J. relying on the decisions of the Allahabad and Patna High Courts referred to above. This decision proceeds on the basis that the mortgagee-purchaser was not aware of the fact that his vendors had only a fractional interest in the property or that there was another heir who had also an interest in the property. Therefore, according to the learned judge, the mortgagee-purchaser could not have intended to keep the mortgage alive in respect of the outstanding share of the heir who had not joined the sale deed. In our view with respect, the approach made by the Calcutta High Court is not supported by the provisions of the Transfer of Property Act. Under S.7 of that Act a person is competent to transfer only property which he is entitled to or authorised to dispose of. In our view with respect, the approach made by the Calcutta High Court is not supported by the provisions of the Transfer of Property Act. Under S.7 of that Act a person is competent to transfer only property which he is entitled to or authorised to dispose of. In other words, it is the well-settled rule of the law of property that no one can transfer or convey title to property unless he himself has title to it or is authorised to transfer by a person having title to it. The question of title of the purchaser is not dependent upon his knowledge about the vendor's title, but on the factual existence of his title; and, if the mortgagee-purchaser does not acquire title to a share of the property purchased the mortgage in respect of that share will subsist, unless there are circumstances which will go to show that the mortgagee-purchaser intended to wipe off the mortgage-transaction, by his purchase, though defective in respect of a portion of the property. We are therefore, with respect, unable to subscribe to the view taken by the Calcutta High Court in Saila Bala v. Gouri Bala (AIR. 1952 Calcutta 749) to the full extent it goes. 12. Those who conveyed properties to the mortgagee as per Exts. B 42 and B43 sale deeds had only 41/48 share in those properties. They could convey only that much interest in those properties. Though they purported to convey the full right in the whole of the two items, in fact what is conveyed is only their interests or shares. No circumstances were brought to our notice from which we could infer that the 1st defendant-mortgagee intended to close the mortgage transaction by taking Exts. B42 and B43 sales. The only conclusion possible is that the 1st defendant purchased the interests of the executants of Exts. B42 and B43 in the mortgaged properties for Rs. 148/-and Rs. 87/- (cash considerations for the sales) respectively. The plaintiff's rights are therefore governed by the last paragraph of S.60 of the Transfer of Property Act whereunder he can redeem his share of the mortgaged properties for the reason that the mortgagee, 1st defendant, has acquired the other shares in the mortgaged properties. We therefore repel the argument of the learned counsel for the appellant that Ext. BI transaction was extinguished fully by the execution of Exts. B42 and B43 sales. We therefore repel the argument of the learned counsel for the appellant that Ext. BI transaction was extinguished fully by the execution of Exts. B42 and B43 sales. 13. Relying on the decision in Seshayya v. Lakshminarasimba Rao (AIR. 1930 Madras 1960) the learned counsel for the appellant raised an argument that inspite of the term of 55 years which will expire only in 1980, in view of the fact that the mortgage debt had been wiped off by the mortgagee taking Exts. B42 and B43 sales the plaintiff is entitled to recover possession of his 7/48 share without payment of proportionate mortgage money. The argument is ingenious and attractive, but an examination of the facts of the case shows that it is not acceptable. We have earlier found that the mortgage was extinguished to the extent of 41/48 share of the executants of the two sales, which in effect only conveyed that much interests for the cash consideration of Rs. 148/-and Rs. 87/-stated in these documents. The extinguishment of the mortgage to this extent is brought about, not by payment of mortgage money, but on account of coalescence or merger of the rights of mortgagor and mortgagee to that extent. No portion of the mortgage money was in fact paid. We therefore, are of the view that proportionate mortgage debt is outstanding as a liability in respect of plaintiff's 7/48 share in the properties, and the plaintiff is bound to pay that amount for recovery of possession. The gist of the Madras decision relied on by the learned counsel is succinctly and correctly stated in Mulla's Commentaries on the Transfer of Property Act. (6th Edition) at p. 540 as follows: "A usufructuary mortgage provided that the mortgage should be discharged by the rents and profits for 83 years, but that an annual sum of Rs.64 should be paid out of the rent and profits to the mortgagor. If these payments had been made there would have been no account, but as the payments were not made, the mortgagee was held liable to account and the term of the mortgage was proportionately reduced." This was on the principle, in the words of Venkatasubba Rao J. at p. 162 of the AIR. If these payments had been made there would have been no account, but as the payments were not made, the mortgagee was held liable to account and the term of the mortgage was proportionately reduced." This was on the principle, in the words of Venkatasubba Rao J. at p. 162 of the AIR. reports of the Madras decision: "notwithstanding the period if the mortgagee gets into his hands, from the usufruct of the property, a sum of money belonging to the mortgagor, it is the bounden duty of the former to apply that sum in reduction of the mortgage debt." And this is what Reilly J. said in his concurring judgment in that case [at p. 165]: "It is enough, I think, to remember that the essence of a mortgage transaction is that the mortgage is security for the mortgage debt. When the mortgagee has obtained payment of his debt, the security is done with; there is no purpose left in it." 14. As already stated, the 1st defendant in this case did not obtain payment of the mortgage-money advanced by him. Recitals in Exts. B42 and B43 that portions of the sale-prices are adjusted towards mortgage-money are to be appreciated with reference to the facts and circumstances discussed earlier, and so done, we are of the view that no portion of the mortgage debt was paid to the mortgagee-1st defendant; the parties by execution of Exts. B42 and B43 only intended to sell their rights (extent of which was, no doubt, mis described of misrepresented) in the mortgaged properties. This our conclusion finds support in the decision of the Oudh High Court in Kishen Gopal v. Abdul Latif (AIR. 1940 Oudh 97) wherein it was held: "There is a material difference between a case where cash is paid in satisfaction of the mortgage debt and where property is transferred in satisfaction thereof. In cases where cash is paid the moment the money is appropriated, redemption takes place in fact, but where property is transferred the redemption depends upon whether the title in the property sold in law has passed to the mortgagee or not. Where the satisfaction of a mortgage debt is brought about by transfer of property mortgaged the mortgage debt is extinguished to the extent to which the transfer is valid.' We are in respectful agreement with this principle. Where the satisfaction of a mortgage debt is brought about by transfer of property mortgaged the mortgage debt is extinguished to the extent to which the transfer is valid.' We are in respectful agreement with this principle. We have therefore no hesitation to repel the last point urged by the learned counsel for the appellant, and to hold that the plaintiff's right to recover possession of his 7/48 share in the mortgaged properties would arise, under S.62 (h) of the Transfer of Property Act, only on expiry of the term of 55 years stipulated in Ext. BI, and that for such recovery he has to pay proportionate mortgage-money, besides the value of improvements as per the agreement contained in that document. 15. In view of the conclusion we have arrived at in the preceding paragraph, no question of limitation arises in this case and the decision of the Madras High Court already discussed as well as the decision of the Privy Council in Khiarajmal v. Daim (L. R.32 Ind. Ap. 23) relied on by the learned counsel for the appellant to get over the plea of adverse possession really have no application to the facts of this case. 16. The second appeal fails and is dismissed with costs.z