NARAYANA IYER Vs. KOLAPPAN ACHARI

JUDGEMENT

(1.) THE suit against the decree in which this appeal by the plaintiff is brought was for enforcement of a hypothecation bond executed in his favour by the 1st defendant on 25. 7. 1123 (Ext. A) for Rs. 2500/- to carry interest at 12%. THE 2nd defendant is a hypothecatee from the first of the identical property as per a document of even date i. e. 25. 7. 1123 (Ext. I)for Rs. 2000/ -. THE plaintiff claimed priority for his mortgage over that in favour of the 2nd defendant. THE 2nd defendant retorted making a similar claim for priority for his mortgage. THE court below upheld this plea and granted the plaintiff a decree for sale of the hypotheca subject to the liability under the mortgage in favour of the 2nd defendant. THE question in appeal is whether either of the 2 mortgages has priority over the other and if so which or whether the 2 are co-equal mortgages operating simultaneously and payable pari passu.

(2.) THE maxim de minimis non curant lex - THE law does not concern itself about trifles - may apply and enable courts of justice not to take notice of fractions of a day but not in cases where there are conflicting rights for the determination of which it is necessary that they should do so. (Broom's Legal Maxims 10th edition page 88 ). In the words of Fry, J. as he then was: "i think the law stands in this way, that when two deeds are executed on the same day, the Court must inquire which was in fact executed first, but that if there is anything in the deeds themselves to show an intention, either that they shall take effect pari passu or even that the later deed shall take effect in priority to the earlier, in that case the Court will presume that the deeds were executed in such order as to give effect to the manifest intention of the parties" (Gartside v. Silkstone 21 Chancery division 762 at 767-8 ).

(3.) THE facts are short. THE 1st defendant was in need of money and both the 2nd defendant and the plaintiff helped him by loans. THE 2nd defendant was the first to lend Rs. 2000/- on 1. 2. 1122 on a promissory note (Ext. II ). THE plaintiff followed and he lent Rs. 1500/- on 12. 11. 1122 also under a promissory note (Ext. B ). On 25. 7. 1123 the 1st defendant borrowed Rs. 100 from the plaintiff whereout he paid the interest up to date due both to plaintiff and the 2nd defendant upon the respective promissory notes to them. On that day 2 deeds of hypothecation were executed by the 1st defendant (Ext. I) in favour of the 2nd defendant and (Ext. A) in favour of the plaintiff. Both the documents were registered on the same day as Nos. 3819 and 3820 respectively. Both the documents were written at the dictation of the same person, who was a recognised document writer. Both the documents agree in that they purport to deal with unencumbered property. Each document refers to the other and the executant covenants in each that the liability under the other will be discharged by him. Ext. A gives Ext. I the epithet (has been executed)while Ext. I refers to Ext. A as (is being executed ). THE title deeds of the property were delivered to the plaintiff and that fact is mentioned in his document while nothing is stated about them in the 2nd defendant's mortgage.