TMI Blog1904 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... he debt then outstanding due to him, which amounts to nearly two lacs of rupees. I Afterwards Chowdhry Mahadeo Pershad sued Mr. Wilson on the, two mortgage bonds in two suits, numbered 147 and 148 of 1893, in the Court of the Subordinate Judge of Mozufferpore and obtained decrees, and on the 3rd November 1896 he assigned his interest in those two decrees over to Messrs. Moran Co. The decrees were in accordance with the terms of the mortgage bond. 3. On the 14th March 1896, the 14th August 1896 and 9th October 1896, Mr. Robert Wilson borrowed the sums of ₹ 6,000, ₹ 3,000 and ₹ 10,000 from the present plaintiffs for the purpose of carrying on the work of the factory, and as security hypothecated under three mortgage bonds of those dates the indigo-cakes, which might be manufactured in 1895 and 1896 and in 1896 and 1897 On the 4th November 1897 Mr. Wilson is alleged by the plaintiff to have made over to their servant 96 maunds 4 seers 7 chitak of indigo-cakes, being those produced in the season 1896-1897. 4. On the 17th November 1897, the firm of Messrs. Moran Co. having meanwhile become bankrupt, the Official Assignee in charge of the estate applied in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priority over the previous hypothecation. Evidence was adduced on both sides, and on the 13th June - 1901 the Subordinate Judge dismissed the suit as against defendants Nos. 1, 3 and 4, and decreed the plaintiffs' claim in full against Mr. Wilson. The plaintiffs have appealed. 7. The judgment of the Subordinate Judge is far from satisfactory, and he does not appear to have at all grasped the real points in issue between the parties. 8. He has in the first instance allowed the plea in bar of the Official Assignee on the basis of a decision in the case of A.B. Miller v. Budh Singh Dudhuria (1890) I.L.R. 18 Calc. 43, which has no application to the present case. 9. He has next held that, as under the Transfer of Property Act there is no provision for a mortgage or pledge of indigo-cakes to be produced at some future time, the plaintiff under the deed executed in 1896 obtained no rights as mortgagees to the cakes in suit. He seems then to have been of opinion that the transactions entered into by Mr. Wilson with Chowdhry Mahadeo Pershad as well as with the plaintiffs were of the nature of agreements, and, as Messrs. Moran Co. had enforced the former agreements by executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid, the mortgage or pledge of the produce to Chowdhry Mahadeo Pershad, on which Messrs. Moran ' Co. base their title, is bad in law because the terms of the agreement are too vague. 12. Secondly, it is argued that the titles of both parties being equitable, the appellants are entitled to priority, as they perfected their title by possession. 13. And, thirdly, it is contended that the appellants are entitled to priority over Messrs. Moran Co. because the money which they lent was for the purpose of cultivating the compact of which the indigo-cakes in suit were manufactured, and therefore they held a privileged lien, which should take priority over all others, on the same principle as that on which priority is allowed to salvage liens. 14. There is ample authority, both in England and in this country, that a mortgage of property which is to come into existence in the future is a valid transaction, which Courts of Equity will enforce. The principles governing such transactions in England are set out in Principles of Equity by Ashburner, pp. 333 et seq. together with the cases in which they have been laid down and applied. It is only necessary to refer to the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion this contention cannot be supported. 17. It is true in the oases which have occurred in the Courts in India the years, for which the crops have been hypothecated, have been stated. In the case of Clements v. Matthews (1883) L.R. 11 Q.B.D. 808, however the bill of sale was inter alia for the High House Farm together with all growing and other crops which at any time thereafter should be in or about the same or any other premises, and it was held that the description in the bill of sale of the future crops on the farm was sufficiently specific to make a valid assignment of them in equity. The Master of the Rolls in his judgment remarked: The bill of sale, however, in my opinion relates to two different sets of future crops--one of crops which should thereafter be upon this High House Farm and the other of crops, which might thereafter be anywhere. With regard to the last I think it is too indefinite, but this cannot affect the description of, the future crops on the farm, which appears to me to be sufficiently distinct and definite to identify the property meant to pass, and which therefore in equity did pass, between parties to this bill of sale. In the case of Holroyd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. from Mr. Wilson, under the decrees which had been assigned to thorn by Chowdhry Mahadeo Pershad, had not, then been discharged. The description of the property mortgaged was in our opinion sufficient to cover those indigo-cakes, and after they had been manufactured there was no vagueness as to them which would hinder equity from enforcing the contract. The first point in our opinion therefore fails. 19. The second contention advanced for the appellants is that, the titles of both parties being equitable, the appellants are entitled to priority, as they perfected their title by possession. Apparently-what is meant by this is that after the mortgagor had consented to the plaintiffs taking possession of the indigo-cakes, which by the deeds he purported to hypothecate to them, the legal title to the indigo-cakes became vested in the plaintiffs and so defeated any equitable title, which Messrs. Moran Co, may have had. We are, however, of opinion that the proposition is not sound. We think that it is clear that, where, as in this case, there were mortgages to the creditor of property which was to come into existent in future, and when the creditor had already paid the considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to accept as valid the intention that after his evidence had been given the Subordinate Judge was in error in refusing to add a fresh issue as to possession, (sic) to take fresh evidence from the plaintiffs to prove their possession. In our opinion the evidence fails to prove an actual delivery possession, on which the plaintiffs could rely as, giving them a full legal title to the indigo-cakes. 22. The last contention of the appellants is that they are entitled to priority over Messrs. Moran Co., because the money which they lent was devoted to the promotion of the indigo-cakes, the value of which they claim, and it is suggested they had a privileged lien over the indigo-cakes, which should take priority on the same principles as priority is allowed to salvage liens. The fatal objection to this contention appears to lie in the fact that the lien claimed by the plaintiffs had nothing in common with a salvage lien. The case of Moran v. Mittu Bibee (1876) I.L.R. 2 Calc. 58 is also authority for the view that the loans made by the plaintiffs under the circumstances stated would not entitle them to any lien such as they claim. They themselves had no interest in the factory, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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