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Koopmia Sahib Vs. Chidambaram Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1896)ILR19Mad105
AppellantKoopmia Sahib
RespondentChidambaram Chetti and ors.
Cases ReferredSee Mohesh Lal v. Mohant Bawan Das I.L.R.
Excerpt:
transfer of property act - act iv of 1882, section 74--redemption of prior mortgage--extinguishment of prior mortgage--title by possession--limitation. - - it is conceded he must fail unless section 74 of the transfer of property act applies to this case, the argument being that plaintiff stands in the position of first defendant, who has been mortgagee in possession for over twelve years. it is difficult to see how two usufructuary mortgages could subsist at the same time, and the language of the instrument clearly proves that the intention of the parties was to extinguish the first mortgage by the execution of the second......by the execution of the second. in these cases it is the intention which must be regarded. see mohesh lal v. mohant bawan das i.l.r. 9 cal. 961.3. the second appeal fails and we dismiss it with.....
Judgment:

1. The plaintiff has never been in possession, nor has he made his mortgagors parties to the suit. It is conceded he must fail unless Section 74 of the Transfer of Property Act applies to this case, the argument being that plaintiff stands in the position of first defendant, who has been mortgagee in possession for over twelve years.

2. We think it is clear that this section does not apply. Section 74 contemplates the existence of two mortgages at one and the same time and the independent action of the subsequent mortgagee to put an end to the prior mortgage. It is difficult to see how two usufructuary mortgages could subsist at the same time, and the language of the instrument clearly proves that the intention of the parties was to extinguish the first mortgage by the execution of the second. In these cases it is the intention which must be regarded. See Mohesh Lal v. Mohant Bawan Das I.L.R. 9 Cal. 961.

3. The second appeal fails and we dismiss it with costs.


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