MOTIMUL SOWCAR Vs. VISALAKSHI AMMAL

JUDGEMENT

(1.) S. A. NO. 1389 of 1960 related to a suit filed in the City Civil Court by a certain visalakshi Ammal (plaintiff) for a declaration that she was the absolute owner of the superstructure in premises comprising door No. 21 Broadies Road, Mylapore. The suit was decreed by the learned Assistant Judge, who gave a finding that the plaintiff was the owner of the mortgaged property in controversy, and also a consequential declaration that the mortgage executed by Maduraimuthu Naicker, husband of the plaintiff, would not bind the plaintiff with regard to her interest in the property, i. e. , the proprietary interest in the superstructure. The first defendant-mortgagee preferred a first appeal to the Principal Judge of the City civil Court. That court confirmed the findings of the trial court, and dismissed the appeal.

(2.) THE first defendant-mortgagee thereupon instituted S. A. No. 1339 of 1960, which came up for hearing and disposal before Venkatadri J. The learned Judge went into the evidence, upon which the concurrent findings of fact of the courts below were based. He then furnished his dissenting conclusion on the main issue of fact in the following form:

(3.) THERE was a further contention raised on behalf of the appellant (mortgagee)before the learned Judge that, in any event, the appellant was entitled to the benefit of the equity enacted as S. 41 of the Transfer of Property Act. The learned judge (Venkatadri J.) cited a passage from Sethumadhava Aiyar v. Bacha Bibi, AIR 1928 Mad 778 and came to the conclusion that the mortgagee was entitled to this benefit, in any view. Ultimately, he reversed the findings of the courts below, and held that both the plaintiff (Visalakshi Ammal) and her husband were the owners, but that the mortgagee would be entitled to work out of his remedies only against the right, title and interest of the husband, Marudamuthu Naicker. Both parties have preferred the appeals, under the Letters Patent, which are now before us.