TMI Blog1974 (10) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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. The Executing Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues, 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 was directly and spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 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 not wills. If the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree. 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 of a person to whom such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 s. 100 of the Act. This rule was substituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral 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 saving clause applies to a simple mortgage as well as to mortgages with p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession 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 all such incidents having regard to the land, debt, etc. etc. Chapter III of the Act deals specifically with sales of immoveable pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest 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 the property when it refers to the transfer of property. So also s. 18. 'Sections 19, 20, 21, 22, 23, 24, 26, 27, 28, 31 and 33 are like ss. 11 and 13. Section 38 again clearly refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appears, has a meaning corresponding with that of purchaser; but sale mans only a sale properly so called . Similarly, s. 205 (1) (xxi) of, the Law of Property Act, 1925 which brought order from chaos created by forms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the contrary, entitled to have the mortgagee debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 meaning of the phrase. No doubt, in the hands of may be a multi-faceted phrase connoting many meanings, of which the meaning applicable in the context in which it is used, is the most appropriate. In the context of the saving clause, the inappropriateness of its applicability to a simple mortgage or in the setting of the entire phrase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areful 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 mortgagee or mortgagees had notice of the existence of his prior charge. A reference to S. 48 of the Indian Registration Act and S. 27(b) of the Specific Relief Act would, however, be necessary to spell out the implications of the competing priorities between a charge and amortgage. Before we examine these provisions it is necessary to note that under S. 54 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In Chhaganlal's case (supra) the decision was concerned mainly with the question whether a charge can be an oral charge, or it must, like a mortgage, be created only by a registered instrument. That was a case of an oral charge competing to have a priority over a mortgage. Tyabji, J., after referring to s. 48 of the Registration Act said at p. 191 : As th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notice either by registration or by property being in the possession of the person who has dealt with it first or otherwise, then even the fact that be has a registered document and the right created in the property is only by a simple contract does not avail him. In the case to which the Specific Relief Act did not apply, Mitter, J., in Nemai Charan v. Kokil Bag([1881] 1. L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan. 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 specifically recorded as required by law in the registers mentioned in Section 51 and indices mentioned in Section 55 of the Registration Act. The appellants, Motes, then got the Shukrawar Peth property and the small property in Kalyan sold in execution of the compromise decree. But, as the amount realised by the sale of these properties was not enough to satisfy their claim, the appellants, Motes, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 incurred in the execution of his trust, and, save as otherwise expressly 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 . One of the questions raised before us whether Section 100 of the Act has any application to a charge created by the terms of a decree. It was conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorporated 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 after its amendment by the Transfer of Property (Amendment) Act XX of 1929. If the rights of a simple mortgagee, who is not in possession of the mortgaged property, are not protected by the proviso at all, there is no doubt that the first part of Section 100 will confer upon the charge-holder the same rights as a prior simple mortgagee has against a subsequent simple mortgagee even though the charge does not amount to a mortgage Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 was property which should have been entered in the property cards as it bore CIS Nos. Hence, it is clear that an examination of the relevant property index No. 2 could not have disclosed the existence of the charge on Budhwar Peth property. A reasonably prudent person could not be expected to suspect that the misleading entries were incorrect, and, from a mere reference to a decree, imagine that property not shown as charged at all may also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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, Explanation If constitute an independent category of a deemed or constructive notice of entitlement of the person shown to be in possession. The significance of this provision is that it shows that, where actual possession was to constitute notice of entitlement, it is clearly and specifically dealt with in Section 3 of the Act. It indicates that reference to the factum of possession is made in the Act itself where this constitutes a part of a set of facts which has to be proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents); (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 well known that, whenever it is intended to convey what it signifies, lawyers and draftsmen do not hesitate to use the word possession just as we find it used in Section 3, Explanation 11, relat- ing to deemed notice . It seems that, in the proviso to Section 100 of the Act, the legislature deliberately employed the concept of property in hand , in contra- distinction with property in the possession of a transferee, so as to include cases where a person has at right, which is intangible property vested in him. The right of a simple mortgagee may be capable of being spoken of as possessed by the mortgagee. But, since it is an intangible right, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable 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 used becomes what words employed have come, by common use, to mean and to find recognition as their dictionary meaning . We need go no further here. For applying the literal Rule of interpretation, which ordinarily suffices unless there is good reason to depart from it, the Dictionary meaning has to be necessarily relied upon. This does not exclude other very useful aids to construction, such as a glance at legal history to discover what a provision was aimed at achieving. An attempt to apply what is known as the mischief Rule will, I think, lead to the same result. As equitable principles evolved by the Chancellor's Court in England underlie a number of provisions of our Transfer of Property Act, it is useful to remind ourselves of the equitable doctrine embodied in the proviso to Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 , the need to show a purchaseof the whole interest which a transferor could pass finds no place(See :Pomeroy's Equity Jurisprudence 5th Edn. Val. 3, para 745,pages 19-20). A distinction is made between the claims of a legal mortgagee , who is described as holding of course, the legal estate , and those of a merely equitable mortgagee (See : Pomeroy, Vol. 3, part 741). The question whether a bonafide 'purchaser for value includes a legal mortgagee or not could arise only in the context of use of the term purchaser which became attached to the concept for historical reasons. As we have seen above the concept covers the legal mortgagee in English law. In the case before us, the simple mortgagee is a legal mortgagee and not merely an equitable mortgagee. Although the term purchaser is not used in Section 100 of the Act, the proviso to it seems undoubtedly meant to incorporate the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the.. transfer takes effect . Now this section, laying down the effects, incidents, and implications a transfer begins with words showing that its operation is subject to express terms of transactions which restrict the rights of transferees to less than those of ownership. A mortgage is a transfer of property but not of ownership. Section 8 embodies only a rule of interpretation for transactions or acts of purported transfer. It corresponds to Sections 60(1) and 62 of the English Law of Property Act, 1925. Transfers may be either of the whole or a part of the interest of the transferor. Section 8, in my opinion, was meant to govern matters not expressly provided for in deeds of transfer. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows directly from the words used in the section. And, we need not unnecessarily cut down the apparent amplitude of their scope. If we can reach the same result on the question of priority of a simple mortgage as against charge, of which the mortgagee has no notice by resorting to the principles of equity, justice and good conscience ,, the question arises : why can we not read Section 100 of the Act itself' as a direct statutory recognition of those very principles when this provision contains, comprehensively, as it appears to me to be meant to do, the requirements of equity, justice, and good conscience, on the question of priority between a charge- holder and other possible transferees including a simple mortgagee against whom the question of enforceability of a prior charge could arise? To answer this question satisfactorily I think we are, of necessity, driven to seek light from the principles, developed by the Chancellor's Court of Equity in England which a number of our statutory provisions are intended to incorporate into our statutory law justas a number of them have been embodied in English statutory law nowIf the maxim of equity is that equity follows the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo sections is that the section as amended explicitly states that no charge would be enforced against a person taking the property for consideration and without notice of the charge. The amendment was made in order to set at rest the conflict of decisions that existed before. The view taken by the Judicial Commissioner's Court, Nagpur, before the amendment was that no charge could be enforced against property in the bands of a person to whom such property had been transferred for consideration and without notice of the charge: 15 N.L.J. 141. This view was approved in 30 N.L.R. 303 at p. 305. The view taken in several other cases was that inasmuch as there is no transfer of interest in property in a charge while there is such a transfer of interest in a mortgage a charge would be good against subsequent transferees such as mortgagees or purchasers only if the subsequent transferees had notice of the prior charge : 33 Cal. 985, at p. 993, 38 All. 254 at p. 258 and 42 Cal. 625 . Of course, the precise question raised before us was not actually raised in the cases mentioned above, and, therefore, it was not decided simple mortgagee is also covered by the protection conferred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise equal legal validity. The effect of Section 100 is that while a charge, which is not a transfer of property, gets recognition as a legally enforceable claim, that enforceability is subjected by the proviso to the requirements of a prior notice in order to give it precedence over a legally valid transfer of property. The rights of the appellants chargeholders could only be exercised, on facts found, subject to the priority obtained by the respondent mortagagee's rights. This clear result of the law, as contained in Section 100 of the Act, cannot be defeated by invoking either the terms of or the principles underlying Section 48 of the Act read with the first part only of Section 100 of the Act. If the respondent simple mortgage Oswal could not have claimed the benefit of the proviso to Section 100. the first part of Section 100, read with Section 48 of the Act. could have come to the aid of the applicants. But. on the view adopted by me, this line of reasoning does not help the unfortunate chargeholders at all. Lastly, learned Counsel for the appellants suggested that the mortgages made subsequent to the charge by a decree in favour of the Motes were struck by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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