Madras High Court
Venkatasubbayya vs Venkayya on 26 October, 1891
Equivalent citations: (1892)ILR 15MAD230
JUDGMENT
1. In Ramasami Sastrigal v. Samiyappanayakan I.L.R. 4 Mad., 179 the majority of the Court adopting the rule laid down by the Privy Council in Thumbuswamy Moodelly v. Hossain Rowthen I.L.R. 1 Mad.,1 : s.c. L.R. 2 I.A. 241 held that mortgages executed subsequent to 1858 shall be treated according to what the Privy Council considered to be the erroneous course of decisions, nothing was expressly decided in that case as to how long this rule shall be followed, but the principle kept in view appears to be that that which had been, though erroneously, supposed to be the law in Madras should be followed as to mortgages after 1858, until the Legislature interfered to settle the law. In the present case the District Judge has laid down a new rule, that mortgages executed after the date of the Privy Council decision in Thumbusawmy Moodelly v. Hossain Routhen I.L.R. 1 Mad., 1 : S.C. L.R. 2 I.A., 241 in 1875 must be treated as governed by the principle of that decision. We are not prepared to adopt this principle, and so still further unsettle rights created by mortgages in this Presidency. We consider that under the Privy Council ruling the Courts of this Presidency are at liberty to apply the doctrine of English Courts of Equity to mortgages executed after 1858 until the Legislature settled the law, as it has now done, by the Transfer of Property Act. It is not in favour of the new rule which the District Judge propounds that there has been no decision to that effect in Madras, though it is now sixteen years since the Privy Council decision in Thumbusawmy Moodelly v. Hossain Rowthen I.L.R., 1 Mad., 1; s.c. L.R., 2 I.A., 241.
2. We think the District Munsif's view was right, and we reverse the decree of the lower Appellate Court, and restore that of the Munsif. Respondent must pay appellant's costs in this and the lower Appellate Court.