9911796707
TMI Blog1974 (10) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ex of registration. The significance of this omission will become evident when the full facts are narrated. Thereafter on June 27, 1949 the respondents 1 to 7 mortgaged the Kakakuva Mansion to the plaintiff respondent 14 for a sum of ₹ 1 lakh. The respondents created a further charge on September 13, 1949 in favour of the said plaintiff respondent 14 for ₹ 50,000/- On July 7, 1951 a charge was created by a decree in favour of respondent 15 for a sum of ₹ 59,52 1 /1 1 /- under an award decree. In the meantime the appellants had recovered some amounts by execution of their decree in Civil Suit No. 741 of 1938 by sale of the property at Shukrawar Peta at Poona and the chawl ,it Kalyan. In spite of these sales a large balance was still due, and in order to recover the balance of ₹ 1,57,164/- appellants filed Darkhast No. 32 of 1952 in the Court of the 3rd Joint Civil Judge, Senior Division ,it Poona for the sale of Kakakuva Mansion over which, as we have said earlier, there was a charge created in favour of the appellants by the decree of March 31, 1941. Notices were issued under O.21 r.66 of the Code of Civil Procedure to respondent 14 and other respondents. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent 15 for its dues, though it had not filed any appeal. Against this judgment and decree two appeals were filed, one in respect of First Appeal No. 40 of 1960 and the other in respect of First Appeal No. 668 of 1957. It was contended before the High Court that whatever may be the position under s. 100 of the Act, respondents Motes would still be protected by s. 52 by the doctrine of lis pendens. Overruling a preliminary objection that this point was not taken in the Trial Court, the High Court, after considering the admitted position, noticed that originally there was only a money debt due to defendants 9-13 from Datars. The appellants had filed Suit No. 741 of 1938 and practically three years thereafter at the time, of passing of the decree, a charge by agreement was created on the properties of Datars. Admittedly, the properties on which the charge was created were not the subject-matter of the, suit and no, issue was raised in that suit in respect of these properties. It was pointed out that for s. 52 to apply, two conditions have to be fulfilled, namely, (1) the suit or the proceedings must not be collusive and must be pending; and (2) the right to immoveable property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Index (Index II). A person who wishes to search the registers for arty prior sale, mortgage or charge would necessarily inspect Index 11, which under s. 55 (3) of the Registration Act is required to contain such particulars mentioned in s. 21 relating to every such document and memorandum as the Inspector General from time to time directs is that behalf. Under s. 21 description of property and maps or plans have to be mentioned in all non-testamentary documents relating to immoveable property before they are accepted for registration, with further particulars as specified in sub- ss. (2) to (4) thereof. Under s. 55(1) there are to be four Indices I to IIV. Sub-section (2) provides that Index I shall contain the names and addresses of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No. 1 and Index If shall contain such particulars mentioned in s. 21 relating to every such document and memorandum as the Inspector General may from time to time direct in that behalf, Under s. 51(2) in Book I shall be entered or filed all documents or memoranda registered under ss. 17, 18 and 89 which relate to immoveable property, and are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created by the decree. The question which will arise, for our consideration is whether the appellants by reason of the decree creating a charge on the suit properties have a priority over the subsequent simple mortgage created in favour of respondent 14. We need not go into other niceties, as to what would be the position where a sale deed is invalid for want of registration or whether a transaction intended to be a mortgage but not reduced to writing and registered will operate as a charge, because in this case the competition is between a charge created by a decree which was registered and a subsequent mortgage without notice of a prior charge. It is contended that the provisions contained in s. 100 of the Act that "save as otherwise provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice: of the charge" means and implies that where there is a charge and where the property is sold and is in possession of the purchaser for consideration, no charge so created prior to the sale can be enforced against a property in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge in s. 100 indicated specifically that it does not amount to a mortgage. It may be incongruous and in terms even appear to be an anti-thesis to say on the one hand that a charge does not amount to a mortgage and yet apply the provisions applicable to a simple mortgage to it as if it has been equated to a simple mortgage both in respect of the nature and efficacy of the security. This misconception bad given rise to certain decisions where it was held that a charge created by a decree was enforceable against a transferee for consideration without notice, because of the fact that a charge has been erroneously assumed to have created an interest in property reducing the full ownership to a limited ownership. The declaration that "all the provisions hereinbefore contained which apply to a simple mortgage shall., so far as 2 33 may be, apply to such charge" does not have the effect of changing the nature of a charge to one of interest in property. Order 34 r. 15 of the Code of Civil Procedure also provides for the remedy of enforcing a charge under which all the provisions of O.34 in so far as they are applicable to a simple mortgage would be applicable to a charge under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Raghubir Singh Lal v. United Refineries([1933] 60 I. A. 183.). The several aspects of the application of the provisions of a simple mortgage have not been and need not be considered by us as they are not relevant for our purpose. Our object is merely to illustrate the reason for a reference in s. 100 to a simple mortgaee The question would then what is the purpose and intendment of 1929 Amendment adding the proviso to S. 100 of the Act ? There may be several views as to why this amendment was effected, but certainly one of them is to get over the effect of certain decisions of the Courts which have held that a charge was valid as against a subsequent purchaser of property without notice on the assumption that a charge created an interest in property and since its effect is similar to a simple mortgage it being first in point of time has a priority over a subsequent sale to a purchaser of property who has taken it with consideration and without notice. It is contended that even after the Amendment of 1929 since no charge can be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and possession has not been given, the purchaser has always the right to enforce a sale deed and obtain possession of the property. In order to ascertain the true import of the terminology used in s. 100 of the Act, it is necessary to state clearly some of the basic concepts embodied in the Act which are beyond controversy. Section 5 defines "transfer of property" as meaning "an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons", and "to transfer property is to perform such act. Section 6 says that property of any kind may be transferred, except as otherwise provided by the Act or by any other law for the time being in force other than those mentioned specifically in clauses (a) to (i) which cannot be transferred. Section 8 deals with the operation of transfer and says that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the, transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. It then narrates a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It will thus be seen that throughout the Act whenever a transfer ,of property is referred to without any qualification, it is to the transfer of all the interest in the property. As already referred to, s. 8 says that "a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property"'. Section 10 when it says "where property is transferred" refers to all the rights in the property. Section 11 makes it still more clear when it provides that "where, on transfer of property, an interest therein is created absolutely in favour of any person" and ,contrasts the transfer of property with the creation of an interest in the property. Section 12, which refers to the property transferred, refers to the whole of the interest in the property. Section 13 refers to a transfer of property and creation of an interest therein and brings out the distinction between the phrase 'transfer of property' and 'creation of interest in the property'; so do ss. 14 and 15 Section 16 refers to the creation of an interest. Section 17 very obviously refers to the transfer of the whole of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is meant by the expression "property in the hands of a person to whom such property has been transferred". There is no need and indeed it would be an incorrect approach to adopt a strained construction or to indulge in unnecessary exercise in semantics to make the proviso applicable to a simple mortgage by holding that the right a mortgage gets under a mortgage can. also be said to be in the hands of the mortgagee. In Berwick & Co. v., Price,( [1905] Ch. D. 639.) Joyce, J., began his judgment by saying : "It is well settled that a purchaser (in which term I must be understood to include a mortgagee or a transferee of a mortgage)......... From this single passage, Halsbury's Laws of England (3rd Edn.) Vol. 14, p. 539, Foot Note (p) treats the case as an authority for the expression 'purchaser to the Conveyancing Act, 1882 (1881) 44 and 45 Viet. Ch. 41, which by s. 2 (viii) defines a "purchaser", unless a contrary intention appears, to include a lessee, or mortgagee, and an intending purchaser, lessee, or mortgagee, or other person, who, "for valuable consideration, takes or deals for any property; an purchase, unless a contrary intention ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to above, cannot on that hypothesis be imported as if that word has the same meaning under the Indian law, when, as we have pointed out, ,our statute adopts different connotations. Nor would there be any justification to refer to the principles developed by the Chancellor's Court of Equity in England or the notion that equity follows the law, in their application to our law, because that would lead only to confusion. In our view, to interpret our statutory laws on the basis of the statutory provisions of England which were enacted to deal with the peculiarities of their laws is to show subservience to that law or to the legislature in that country in preference to ours, though the legislative sovereignty in India even in the British days did not make our laws subordinate to the English laws. It is much more so now long after the independence and the Constitution. This Court cannot accept such an approach, as is suggested. We may by way of illustration refer to section 56 of the Act. it ,states : "If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is, in the absence of a contract to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stretch of the imagination be considered to have the property in his hands." The High Court in the judgment in appeal has disagreed with Horwill, J.'s view on the ground that if the words imply physical possession, then possession of an agent or tenant will not be included. According to the High Court the words "in the hands of" only mean the holding of the title and nothing else. The expression "in the hands of" appears to us to be a figurative expression intended to convey that a person has sufficient control over the subject-matter to which in the context the phrase is applied so as to enable that person to do whatever he can do with it as the nature of that subject- matter would permit. See Edwardes' Menu Company Limited v. Chudleigh.( 14 T. L. R. 47.) 'The judgment of. Kekewich, J., was confirmed by the Court of Appeal Lindley, M. R., Chitty and Vaughan Williams, L. JJ., which is reported in the same Volume at p. 64. The actual control as compared to the possibility of obtaining control seems to be implied in the term. The proverb "a bird in the hand is worth two in the bush", would, in our view, appropriately convey the meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the mortgagee so that any subsequent mortgage or sale always preserves the rights of the mortgagee whether the subsequent dealings in the property are with or without notice. The obvious reason for this is that in a mortgage there is always an equity of redemption vested in the owner so that the subsequent mortgagees or transferees will have, it they are not careful and cautious in examining the title before entering into a transaction, only the interest which the owner has at the time of the transaction. In so far as competing mortgagees are concerned, S. 48 of the Act gives priority to the first in point of time in whose favour transfer of an interest in respect of the same immovable property is created, if the interest which he has taken and the interest acquired subsequently by other persons cannot all exist or be exercised to their full extent together. This section speaks of a person who purports to create by transfer at different times rights in or over the same immoveable property, and since charge is not a transfer of an interest in or over the immoveable property he gets no security as against mortgagees of the same property unless he can show that the subsequent mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a person taking an interest in that property or who purchases that property with notice of the prior charge would take that property subject to the prior rights of which he had notice. That is why s. 53A of the Act and the amendment in s. 48 of the Registration Act recognise certain equities even where the transaction as required by law is not entered into by a registered instrument and would not, but for these provisions, amount to effecting a transfer of an interest or ownership in a specific immoveable property. Section 48 of the Registration Act, 1908, as it now emerges after the amendment Act 21 of 1929, gives a priority to' an oral agreement or declaration relating to a moveable or immoveable property where the agreement or declaration has been accompanied or followed by delivery of possession and the same constitutes a valid transfer under any law for the time being in force. The ordinary rule of s. 48 of the Registration Act is that non-testamentary documents duly registered under the Act relating to any property whether moveable or immoveable shall take effect against an oral agreement or declaration relating to such property subject to the exception stated above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "27. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) x x x x (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract." The illustrations given in respect of clause (b) of s. 27 of the old Specific Relief Act are all cases of sale or out and out transfer of land. It is apparent from this clause that even a subsequent transfer is subject to a contract under which a right to obtain a transfer of specific property has been created. If a subsequent purchaser takes the risk of not ensuring himself of any prior rights in respect of the property to be purchased by him, he cannot be said not to have acted in good faith. But there may be instances where he has notice or but for his carelessness would have bid notice of the prior charge and nonetheless has obtained a transfer, such as where the charge holder is in possession of that property, or where the charge is registered but no inspection is taken of the Register of Charges, mortgages and transfers. If he has such a notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (hereinafter referred to as "The Datars"), which is now before us in appeal No. 1883 of 1967, had become indebted to a number of creditors. One set of these creditors, Defendants Nos. 9 to 13 (hereinafter referred to as "Motes") of this suit had filed the suit No. 741 of 1938 for the recovery of a sum of ₹ 1,34,000/- with interest due to them from the Datars under a simple loan. On 31-3- 1941, the Motes had obtained a compromise decree in suit No. 741 of 1938 by which three sets of properties of Datars were sought to be charged. Two of these properties were in Poona, one in Shukrawar Peth and 'the other in Budhwar Peth, whereas the third property was in Kalyan. After a copy of the compromise decree, showing a charge on all three properties, was duly present before the Sub-Registrar for registration, on 13-5-1941, the document was noted at serial No. 1048-B in Book No. 1 kept by the Registrar, and a certificate complying with the provisions of Section 60, sub.s(2) of the Indian Registration Act was issued by the Sub-Registrar. But, presumably due to the negligence of the office of the Sub-Registrar, only the charge on the Shukrawar Peth property was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected by the proviso to Section 100 of the Act. On appeal, the High Court of Bombay reversed the decree of the Trial Court and held the subsequent simple mortgages to be protected by the proviso. The High Court had also, in modification of the decree of the Trial Court, directed payment of the dues of the Maharashtra Bankdefendant No. 8, under the provisions of order 34, Rule 4, Civil Procedure Code. The principal question which arises in the two appeals now before us is : Does the protection given by the proviso to Section 100 of the Act against the enforcement of a charge extend to a simple mortgagee as a transferee for consideration without notice of the charge ? Section 100 of the Act reads as follows: "Where immovable property of on.-, person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in interest to execute the Decree to satisfy the claim or a separate unit was needed. That question has not been raised before us. We are concerned here with a charge created by the terms of an agreement between the parties which was embodied in the compromise decree. This agreement satisfies the requirements of Sec. 100 of the Act inasmuch as it is a charge created by the act of parties. It is immaterial that the charge was subsequently incorporated in a decree. We also find that no contention was advanced either in the Trial Court or in the High Court that a charge under the terms embodied in the, compromise decree operates or binds outside the conditions laid down by sec. 100 of the Act for enforcing charges in general. I am not impressed by the argument. I hold that a charge was created by the terms of the agreement embodied in the consent decree, which was actually registered even though, unfortunately for the charge holders, the provisions of Section 51 of the Registration Act were not fully complied with in keeping a record of the charge. That charge against Budhwar Peth property would be enforceable if the plaintiff-respondent is not protected by the terms of the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in actual possession thereof. Explanation III.-A person shall be deemed to have notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material : Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud'. It is no body's case that there was any wilful abstention from enquiry by Oswal whose agent Bhikam Dass deposed : "the search in Sub-Registrar's office was taken by me. searched under No. 1 and 2 of property card. I did not see the register in which the decretal charge was noted. The transactions in disputed were settled through me. gave information to plaintiff". Anant Sitaram Joshi, the Clerk of the Sub-Registrar's office, stated that, although the compromise decree was mentioned in Index No. 1, no entry about it was made in Index No. 2. Even in Index No. 1 it was not mentioned that the Budhwar Peth property was subject to a charge. He stated that it was not mentioned in Index No. 2 because the appropriate orders were wanting although it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this provision will emerge by determining what its object is by : firstly, considering the language employed in the context of other sections of the Act defining the concepts involved; and, secondly, if there is any uncertainty left, by glancing at some legal 24 9 history so as to appreciate what the provisions could be aimed at achieving. I have set out above the requirements of notice, both actual and constructive, found hi Section 3 of the Act. So far as constructive notice is concerned, it is evident that the three Explanations lay down what is deemed to be notice under each of the three sets of circumstances dealt with separately by each Explanation. There is a presumption against redundance or meaningless overlapping of statutory provisions. Explanation 1, within which the case of the plaintiff Oswal was sought to be brought by Motes, deals with a very different set of circumstances, and, apparently, dispenses with circumstances bringing in Explanation II which makes it clear that a person acquiring any share of interest in immovable property will be "deemed to have notice of the title, if any of any person who is in actual possession thereon". In other words, Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glish language. It denotes power over or capacity to do or skill in doing various things. Its derivative "handle" may be an object one can physically grasp with one's hand, but "to handle" denotes capacity for management or control. The word "hand" is used in conjunction with "at" and "on" and "to" and "in". The various meanings of "in hand" given in Webster's Third New International Dictionary (p. 1026) are : (1) In one's possession (e.g. to have enough money in hand); (2) In control (e.g. to keep the children in hand by a system of rewards and punishments); (3) At one's disposal (e.g. to have a large property in hand because of one's position); (4) To spare (e.g. to have plenty of time in band); (5) In preparation (e.g. a new play in hand); (6) Under consideration (e.g. matter in hand); (7) Under effective control or management (e.g. business in hand). Thus, we see that to have possession of an object is only one of the several Dictionary meanings but not the only meaning of the expression "in hand"'. Moreover, the concept of possession in legal terminology is so wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruing the words "in his hands" literally. If the words were to be construed literally, the section would not apply to a purchaser, who is not in actual physical possession but is in possession through his agent or his tenant or his mortgagee. The words "in the hands" can and must only mean "held by" or "owned by" and cannot mean physical holding of the property. They only mean the holding of the title and nothing else. These words do not indicate that the section was only intend- ed to apply to a purchaser or a mortgagee in possession. Section 58 of the, Transfer of Property Act does not make any difference between a mortgagee, who is a simple mort- gagee, and a mortgagee with possession. It only slightly alters the rights that are available to the mortgagee, but the actual transfer is the transfer of a subordinate interest in the mortgaged property and that is the same in both the cases". As explained above, even the literal meaning of the words "property in hand" could be said to be wider than that of tangible property in physical possession. After all, a literal meaning or the "plain ordinary meaning" of words use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be". In other words, for applying the equitable principle explained there, a mortgagee is equated with the absolute owner under an outright sale of rights of ownership. A reference to Barwick & Co. v. Price([1950] (1) Ch. 632.) also shows that the meaning of the term "purchaser for value" as including a mortgagee was so well settled in English law that it received statutory recognition in Section 2(viii) of the Conveyancing Act, 1882, there. Again, Section 205(1)(xxi) of the Law of Property Act, 1925, in defining "purchaser", made it abundantly clear, that both an outright purchaser and a mortgagee could fall under the protective cover of the doctrine of a "bonafide purchaser for value". This only meant that English law too gave statutory form and expression to doctrines evolved by Courts of Equity. A bare perusal of passages in Pomeroy's Equity Jurisprudence" is enough to show that the concept of a "bonafide purchaser for value includes the mortgagee and that a "legal mortgagee" has, for the purposes of applying the doctrine, a "legal estate". In a discussion of"what constitute& a bona fide purchase", t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by Section 3 of the Act. If a simple mortgage amounts to a transfer of property for the purposes of Section 100, as it does, it is immaterial that a transfer of property implies a transfer of the whole bundle of rights in property which the transferee has for the purposes of situations dealt with by other Sections. For example, Section 8 of the Transfer of Property Act reads as follows "8. Operation of transfer. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferee is then capable of passing in the property, and in the legal incidents thereof. Such incident.,; include, where the property is land, the casements annexed thereto, the rents and profits thereof accruing after the transfer and all things attached to the earth; and, where the property is machinery attached to the earth, the movable parts thereof; and, where the property is a house, the casements annexed, thereto, the rent thereof accruing after the transfer and the locks, keys, bars, doors, windows and all other thing,-, provided for permanent use therewith; and, where the property is a debt or other act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of "full rights of ownership in property". To do that, we will have to at least alter the words "such property" into "rights of ownership in such property". The words "such property" do not, it seems to me, stand only for "full ownership of property'. They obviously denote that property which has been transferred. If the transfer of an interest in property to a mortgagee, whether simple or usufructuary, is a transfer of property, "such property" could only mean, in the case of a mortagee, the interest in property which has been transferred to the mortgagee because that is also "property". The words used could not, in the context, stand only for the whole bundle of rights which ownership of such property may made up of. In any case, what the mortgagee, has in hand is only an interest in- property, so that this, and nothing more, is "property in the hands of" a mortagee. When his case is under consideration that is all we are concerned with. We need indulge in no semantic, refinements at all to reach this result which flows directly from the words used in the section. And, we need not unnecessarily cut d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two mortgagees by registered deeds, over a previous charge in favour of the appellants. The mortgagee was given the benefit of the amended Section 100 of the Act. In Barhu Mahto & Anr. v. Srimati Jasoda Devi & Ors.,( AIR 1945 Pat. 426.) Fazl Ali, C.J., and B. P. Sinha, J., held that plaintiff who brought a suit to enforce a right under a mortgage bond obtained priority over a previous charge under a compromise decree. The learned Judges remanded the case to the Trial Court for framing an issue and deciding the question whether the transferor of the rights of the plaintiff under the mortgage bond (defendant 23) had notice of the charge upon which the Defendants-Appellants relied. In Goswami Maheshpuri Guru Ramkrishnapuriji vs. Ramchandra Sitarami A Anr. (1) the plea of a Defendant charge holder under a decree was repelled as against the plaintiff- respondent who bad brought a suit to enforce a subsequent mortgage because the mortgagee had no notice of the charge, Grille, C.J. observed with regard to the distinction between the unamended and amended sections (at page 5) "The main difference. to he noticed in the two sections is that the section as amended explicitly states t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such charge". I think that, apart from the, qualifying words, "so far as may be", used by Section 100 of the Act, a condition essential to the applicability of Section 48 of the Act is that there must be an actual transfer of property. Furthermore, another condition for invoking Section 48 of the Act is that the previous and the subsequently created rights "cannot all exist or be exercised to their full extent together". In the case before us, this does not appear from facts found. In any case, the prior right of the charge-holder could only obtain priority provided other things are not unequal. This follows from words used indicating that each of the two or more transactions must at least be a "transfer". Furthermore the conditions of priority as between the holder of a previous charge and a subsequent simple mortgage are completely covered by Section 100 of the Act. The principle underlying Section 48 is one expressed in the maxim of Equity : "Qui prior est tempore potior est jure (first in time is stronger in right). This principle, applied to ranking between rival equitable claims, is applied by Section 48 to contending claims of othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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