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Motilal Hirabhai Vs. Kasambhai Hasanbhai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 247 of 1924
Judge
Reported inAIR1928Bom16; (1927)29BOMLR1334
AppellantMotilal Hirabhai
RespondentKasambhai Hasanbhai
DispositionAppeal dismissed
Excerpt:
transfer of properly act (iv of 1882), section 3, amended by act xxvii of 1926 and ant x of 1927-'attest,' definition of-retrospective effect.;the amendment made by act xxvii of 1926 in the definition of the word 'attest' in section 3 of the transfer of property act, 1882, has been given a retrospective effect by act x of 1927. - - 6 must fail on this point. in fact the 1926 act was merely a case of bad drafting which has now been amended by the 1927 act bo as to run in the ordinary form......the plaintiff and defendant no. 6, two points have been raised on the appeal, viz, (a) whether the earlier mortgage in favour of the plaintiffs, ex. 30, dated august 3, 1913, was properly attested according to law, and (b) whether the earlier mortgage of the plaintiff, ex. 30, was merged in the later security, ex. 27, taken by him on february 2,8, 1921.2. on the first point it was conceded in argument that if the amending act no. xxvii of 1926 was retrospective, then on the facts of the present case the appellant-defendant no. 6 must fail on this point. it was, however, contended that the act was not retrospective, and decisions both before and after that act were cited, including in particular a full bench decision in girja nandan kalwar v. hanuman das marwari i.l.r. (1926) 49 all. 25.....
Judgment:

Amberson Marten, Kt., C.J.

1. This appeal raises a question of priority between competing mortgagees, viz., the plaintiff and defendant No. 6, Two points have been raised on the appeal, viz, (a) whether the earlier mortgage in favour of the plaintiffs, Ex. 30, dated August 3, 1913, was properly attested according to law, and (b) whether the earlier mortgage of the plaintiff, Ex. 30, was merged in the later security, Ex. 27, taken by him on February 2,8, 1921.

2. On the first point it was conceded in argument that if the amending Act No. XXVII of 1926 was retrospective, then on the facts of the present case the appellant-defendant No. 6 must fail on this point. It was, however, contended that the Act was not retrospective, and decisions both before and after that Act were cited, including in particular a Full Bench decision in Girja Nandan Kalwar v. Hanuman Das Marwari I.L.R. (1926) 49 All. 25 referred to by my brother Crump, where by a majority of three Judges to two it was held that that Act was not retrospective. But daring the adjournment, following on a suggestion from the Bench, the subsequent legislation was looked up, and by the industry of Mr. Ratanlal, counsel for the appellant, it was discovered that in a Schedule to a general amending Act the point in question had been settled, 1 refer to Act X of 1927 where at the end of a long Schedule there are certain words added which make it quite clear that Act XXVII of 1926 is retrospective. In fact the 1926 Act was merely a case of bad drafting which has now been amended by the 1927 Act BO as to run in the ordinary form. That, accordingly, disposes of the first point,

3. [The rest of the judgment is not material to this report.]


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