Phillips, J - (1.)Plaintiff-appellant is the assignee of the equity of redemption in the plaint lands, which were mortgaged in 1882 to the grandmother of defendants-respondents. It is respondents case that in 1884 four items of the mortgaged property were sold orally to the mortgagees in discharge of the mortgage-debt. This case has been found to be true by the lower Appellate Court. It is also found that the alleged sale being oral is invalid, as the property is worth over Rs. 100, but as defendants and their grandmother have been in adverse possession from 1884 until date of suit in 1910, they have acquired a title by prescription. Plaintiff s suit for redemption and for accounts from defendants as mortgagees in possession has been dismissed. The appeal is pressed on three main grounds: (1) that the plea of oral sale has been negatived and that the matter is res judicata by reason of the decision in Original Suit No. 19 of 1890 in the Peddapur District Munsif s Court, (2) that the possession obtained by defendants grandmother in 1884 was that of a mortgagee, and cannot, therefore, be adverse to the mortgagor, and (3) that oral evidence of the alleged sale in 1884 is inadmissible under provision (4) of Section 92 of the Evidence Act.
(2.)On the first point, I do not think that appellants plea is sustainable. In 1890, plaintiff s predecessor-in-title sued to evict defendants grandmother, Achamma, as a trespasser on four items of the land now in suit. Achamma in defence put forward the mortgage-deed of 1882, which it is now sought to redeem, and pleaded that as the mortgagor had made default in payment, he had given up these lands to her "as sold for the whole amount" of the mortgage- debt and Rs. 25 (twenty-five) paid by Achamma for Government dues. The mortgage-deed of 1882 contains a proviso that if the mortgagor makes default, he shall put the mortgagee in possession of the mortgaged property, and it is contended that issue No. 1 in Original Suit No. 19 of 1890, must be read in the light of the mortgage-deed. Issue No. 1 runs as follows: Whether the plaint lands were wrongfully usurped by defendants from plaintiff s possession or were delivered over by plaintiff to first defendant in the terms of the registered mortgage-deed dated the 9th November 1882?" This issue was presumably framed on the pleadings and, therefore, "delivered over by plaintiff in the terms of the registered mortgage-deed" must refer to defendants allegation that on default of payment of the mortgage amount by-plaintiff, the lands were delivered to her "as sold," and the issue merely is as to whether plaintiff s or defendants case is true. The plaintiff s second witness in that case admitted the existence of the mortgage and said that defendants got into possession under the mortgage and subsequently continued in possession in accordance with the decision of a panchayat. Acting upon this evidence, the District Munsif appears to have thought that defendants were in possession under the mortgage, and dismissed plaintiff s suit. The only finding on the point is that plaintiff delivered the plaint lands to defendants under "an" arrangement and that defendants did not wrongfully usurp the plaint lands. The District Munsif also adds: "It seems that plaintiff has no cause of action to recover until he settles the matter of the mortgage-deed"; but he does not find this as a fact. Plaintiff s suit was dismissed and defendants could not have appealed, but that does not affect the case here, for I am of opinion that the existence of the oral "ale to defendants was not directly and substantially in issue and finally decided in that suit. There is certainly nothing in the judgment which amounts to a finding that the oral sale was untrue, and the suit was dismissed apparently because according to plaintiff s own evidence defendants were in possession, not as trespassers as alleged in the plaint, but under some arrangement under the mortgage-deed, the nature of the arrangement not being specified. The question is, therefore, not res judicata.
(3.)The second point raised is that Acham-ma s possession from 1884 was possession as a mortgagee and cannot, therefore, be adverse to the mortgagor. The finding of fact is that she did not get into possession as a mortgagee but as a purchaser in an invalid sale. This finding is impeached on two grounds, firstly, that the oral evidence of the sale on which it is based, is inadmissible in evidence, and secondly that when a mortgagee gets into possession during the continuance of a mortgage, his possession cannot be adverse to the mortgagor. This latter argument pre-supposes that the mortgage was continuing when possession was obtained, whereas the oral evidence is that the mortgage had been discharged. It will be better, therefore, to decide the third point, i.e., whether the oral evidence of the sale is admissible in evidence, before dealing with the points that depend upon a decision of this question. No doubt the oral sale is invalid, and evidence is inadmissible to prove it as an agreement to contradict, vary, add to, or subtract from the terms of the mortgage. (Section 92 of the Evidence Act.) Similarly under proviso 4, the existence of a distinct subsequent oral agreement to rescind or modify its terms cannot be proved. Can the sale in this case be held to be an agreement contradicting, varying, adding to, or subtracting from the terms of the mortgage or as rescinding or modifying the mortgager I think not. The effect of the agreement is to discharge the mortgage, i.e., to put an end to the contract by fulfilment, and although the oral sale accompanied by delivery of possession does not effect any legal transfer of the property, yet there is nothing in Section 92 to exclude evidence of the transaction as showing discharge of the mortgage debt. No doubt in Ariyaputhira Padayachi v. Muthuhumarsawmy 15 Ind. Cas. 343 : 23 M.L.J. 339 : (1912) M.W.N. 854 : 12 M.L.T. 425 : 37 M. 423 it was held by Sadasiva Aiyar, J., that oral evidence of discharge by an invalid transfer was inadmissible in evidence and he goes so far as to hold that oral evidence to prove a conveyance as equivalent to payment of money, could not be allowed. In that case, the facts were very similar to the present one, i.e., the mortgagee alleged an oral sale of part of the mortgaged property in discharge of the whole mortgage; and the transaction sought to be relied upon had the effect of changing the possession of a mortgagee as such to possession as owner. But that case was a case of an usufructuary mortgage, and this I think is an important difference. Miller, J., does not discuss the admissibility of the evidence in any event in considering whether the transfer of property can be proved as showing the intention of the parties to discharge the mortgage and so, as showing change in the mortgagee s possession, to make it adverse to the mortgagor. He merely says that the intention to discharge the mortgage involves the intention to make certain transfers, and it is impossible to say that if those transfers failed, both parties nevertheless intended to discharge the mortgage. He does not hold that in no circumstance would oral evidence of the arrangement be inadmissible, and I think that in accordance with the views expressed in Ram Awatar v. Tulsi Prasad Singh 11 Ind. Cas. 713 : 14 C.L.J. 507 : 16 C.W.N. 137, Kattika Bapanamma v. Kattika Kristnamma 30 M. 231 : 17 M.L.J. 30, Karampalli Unni Kurup v. Thekku Vittil Muthorakutti 26 M. 195, Goseti Subba Row v. Varigonda Narasimham 27 M. 368, such evidence is admissible for proving discharge although the sale by which the discharge was intended to be effected, is invalid. In Ram Awatar v. Tulsi Prosad Singh 11 Ind. Cas. 713 : 14 C.L.J. 507 : 16 C.W.N. 137 an oral arrangement whereby a mortgagor was put in possession of part of the mortgaged property in discharge of the liability of the usufructuary mortgagee to pay him surplus profits, was allowed to be proved by oral evidence and this in effect was allowing oral evidence of an agreement varying the terms of the mortgage to be adduced for the purpose of showing payment of money due under the terms of a registered mortgage-deed. In Kattika Bapanamma v. Kattika Kristnamma 30 M. 231 : 17 M.L.J. 30 in a suit for arrears of maintenance defendant pleaded that, in discharge of his obligation to pay maintenance due under a registered deed, plaintiff had been put in possession of certain lands under an oral agreement. It was then held that the subsequent oral agreement being an agreement to rescind or modify the original registered agreement was not receivable in evidence, but that it was open to defendant to prove that the arrears claimed were actually discharged by the plaintiff taking possession, although the agreement to discharge cannot be proved. The other two cases, Karampalli Unni Kurup v. Thekku Vettil Muthorakutti 26 M. 195 and Goseti Subba Row v. Varigonda Narasimham 27 M. 368 are not so much in point, but there also evidence of an invalid oral agreement was allowed in order to prove discharge of the prior registered agreement. These rulings appear to me to be opposed to Sadasiva Iyer J. s opinion in Ariyaputhira Padayachi v. Muthukumarasawmy 15 Ind. Cas. 343 : 23 M.L.J. 339 : (1912) M.W.N. 854 : 12 M.L.T. 425 : 37 M. 423 that oral evidence to prove a conveyance as equivalent to payment of money cannot be allowed. This opinion was not expressed by Miller, J., in the same case and is really an obiter dictum, and I prefer to follow the principle set forth in the other four cases above, which does not seem to me to be opposed to the provisions of Section 92. In this case, then, the oral agreement is sought to be proved not as modifying the mortgage, but in order to prove fie nature of possession taken by the mortgagee and I hold that the oral evidence is admissible, and on this evidence we have the finding of fact that the mortgage-debt was discharged and that defendants predecessor got into possession of the mortgaged properties not as mortgagee, but as owner, and that the possession as owner was adverse to the mortgagor and recognized by him to be so. Although the oral sale cannot in itself operate as an extinguishment of the mortgage, yet the proof of the payment of the mortgage-debt thereby is sufficient to prove the nature of possession by the mortgagee. In this view, I would follow the ruling reported as Uusman Khan v. Nagalla Dasanna 16 Ind. Cas. 694 : 37 M. 545 : 12 M.L.T. 330 : 23 M.L.J. 360 : (1912) M.W.N. 995, and hold that defendants possession has been all along adverse as against the mortgagor, and they have now acquired a title by prescription. Vide also Kone Goundan v. Bola Naicken 12 M.L.J. 387 and Venkatarayudu v. Subbamma 13 M.L.J. 302.