Document Fragment View

Matching Fragments

29. Now the judgments in Sakhiuddin Saha v. Sonaulla Sircar, (Richardson, J.), and Peruma Ammal v. Perumal Naicker, (Wallis, C. J.), proceed upon the basis that it is more reasonable to hold that the" provisions in Ch. 4, T. P. Act, are intended to have effect over all mortgages and dealings with mortgage rights than to hold that transfer of such rights may in effect be made by mere oral assignment and in a manner not specifically provided by the Act or any other law applicable thereto. The draftsmanship of 1900 is not too good but so far the intention of the legislature can be discerned and I think it is impossible to resist this argument. No doubt a mortgagee may release his security and then proceed to assign by unregistered instrument and if ever such a transaction is met with it will give rise to little difficulty. But the giving up of the security is a transaction between himself and the mortgagor. The permissible method of transfer would seem to depend upon what the debt in fact is and it is just because on principle the security must follow the debt that the debt must be dealt with as Ch. 4 provides, if it is in fact secured. We are not here concerned with promissory notes or sales in execution. Putting aside transfers which come under any special law I agree with the view taken by Wallis, C. J., of the intention of the Transfer of Property Act, viz. that in general mortgage debts should only be transferred by way of sale, submortgage, exchange or gift with the mortgagee's interest in the land and therefore (speaking broadly) by registered instrument: Peruma Ammal v. Perumal Naicker (2) at p. 201 (of 44' Mad.) The view taken by Krishnan, J., in Elumalai's case seems to me to depend upon the supposition that the debt will not draw after it the security unless the case comes within the penultimate clause in S. 8, T. P. Act, or unless the debt is transferred as a secured debt. But no statute has said so and between assignor and assignee elementary principle is all the other way. Moreover if a secured debt is to be dealt with as unsecured, it is being dealt with either as an actionable claim (so that S. 8 would apply) or as an innominate form of property free even from the provisions of Ch. 8 which cannot have been intended.