OFFICIAL RECEIVER Vs. LAKSHMAN AIYAR

JUDGEMENT

(1.) I am clear that by the amendment made in the definition of " actionable claim" on the Transfer of Property Act in 1900, the Legislature intended that when money is borrowed on mortgage of immoveable property, the creation of the security on the irnmoveables should be treated as material part of the mortgage transaction and that the mortgage debt should not be treated as validly transferred if the conditions imposed by the statute law as requisites for the valid transfer of the security have not been complied with. I think that the latest pronouncement of the learned Chief Justice in Perumal Ammal V/s. Perumal Naicker (1920) 40 M.L.J. 25 supports my above view.

(2.) The result is that the appeal has to be allowed and the respondent could be treated only as an ordinary creditor and not a secured creditor. The respondent will pay the appellant's costs in both Courts.

(3.) The mortgage debt has not been legally assigned as correctly stated by the District Judge. Section 134 of the Transfer of Property Act has no application nor can any principle embodied therein be applied against the other provisions of the Transfer of Property Act.