1. The appellant is the assignee under Exhibit II (b) of the mortgage granted by Khadir and his wife as Ramchandra Naik under Exhibit II (a). He put forward his claim under Exhibits II (a) and II (b) in his written statement and that is made the subject of a third issue. We think, therefore, that the Judge is wrong in refusing to adjudicate on his claim. It is unnecessary to make him a party expressly as an assignee when he is already a party to the suit. We, therefore, direct the Judge to return a finding on this issue. Further evidence may be taken.
2. The finding should be submitted within one month after the re opening of the District Court, and seven days will be allowed for filing objections.
3. In compliance with the above order, the District Judge submitted the following
4. The question is whether 10th defendant is entitled to priority. Neither side has put (SIC) any fresh evidence.
5. Tenth defendant claims priority in two ways, both by a hypothecation bond in his favour by 5th defendant, dated 24th March 1903, and by an assignment deed in his favour, dated 31st October 1905, by Ramchandra Naicker whose title was a hypothecation-bond by 5th defendant and her husband, dated 15th May, 1894. Thus 10th defendant's claim to priority is not affected by the question whether the land belonged to 5th defendant alone, or to her and her husband jointly. The Court of first instance found, however, that the plaint property items Nos. (1-21) belonged to 5th defendant, as they were conveyed to her by a sale-deed, and the patta stood in her name the registry having been transferred to her by the vendor's heir. There seems to be no need to doubt this finding.
6. I, therefore, find that 10th defendant was entitled to priority.
7. This second appeal coming on for final hearing, after the return of the finding of the lower Court, the Court delivered the following
8. We accept the finding that the appellant has priority with regard to the mortgage of 1894 and the decree will be modified accordingly. There will be no costs throughout.