ELUMALAI CHETTY; JAGANNADHA CHETTY Vs. PBALAKRISHNA MUDALIAR

JUDGEMENT

(1.) The first question that arises for our decision in this Second Appeal is whether an indorsee for value of a negotiable instrument the amount of which had been secured by a mortgage by deposit of title-deeds can claim to enforce the mortgage in the absence of a registered instrument conveying the mortgage rights to him.

(2.) A somewhat similar question arose before the Learned Chief Justice and my learned brother with reference to an indorsee for collection in Cunnaiya V/s. Gopala Chettiar (1920) 40 Mad. Law Journal 25 and was answered in the indorsee's favour. That decision however, is not conclusive in this case as here we have an indorsee for value and the judgment of my learned brother in that case was based entirely on the fact that the indorsement was for collection ; and though the Learned Chief Justice makes no such distinction, my learned brother did not apparently agree with his Lordship's views. Sitting with Hughes, J., the learned Chief Justice has again stated his view in Perumal Ammal V/s. Perumal Naicker (1920) 40 Mad. Law Jornal 25 that though the rule is now that a mortgage right or debt cannot be transferred without a registered instrument under Section 54 of the Transfer of Property Act it is subject to the exception that "where the law still admits of the separate transfer of the mortgage-debt as by (he indorsement of a promissory-note secured by a deposit of title-deeds or by the attachment and sale in execution of a mortgage debt Section 8 of the Transfer of Property Act still operates to carry the security with it." We are, of course, not concerned with court sales of mortgage debts or their effect in this case; that will be governed by the special provisions of the Civil P. C.. The observation regarding promissory notes is clearly an obiter dictum if I may say so with respect ; and though the opinion of the Learned Chief Justice is entitled to great weight, there is no decision binding on us and we must, therefore, consider the question raised before us on its merits.

(3.) It sterns to me quite clear that a mortgage of immoveable property is itself immoveable property under the Transfer o| Property Act whatever the form of the mortgage may be; and the transfer of ownership of such a right falls under Section 54 and will require a registered instrument for the purpose: Vide Sakhiuddin Saha V/s. Sonaullah Sarkar (1918) 22 C.W.N. 641 and 40 M.L.J. 25. It is true that the Chief Justice sitting on the Original Side as Wallis, J. (as he then was) held, relying on Section 8 of the Act, that the transfer of a mortgage was the transfer of the debt with its attendent securities and that registration was, therefore, unnecessary for the transfer of a mortgage. Vide Dwaraka Doss Govardhana Doss v. Dhanakoti Animal (1913) 15 M.L.T. 198. There was some conflict of opinion on the point. See Subramanyam V/s. Perumal Reddi (1895) I.L.R. 18 Mad. 454 on one side and the opinion of Bashyam Ayyangar, J., in Ramasami Pattar V/s. Chinnan Asari (1901) I.L.R. 24 Mad. 449 at 463 and the decision of Chamier, J., (as he then was) in Mutsaddi Lal V/s. Muhammad Hanif (1912) 10 A.L.J. 167 following it, on the other side. In this conflict of views the Legislature amended the Act in 1900 and excluded mortgage debts from the category of actionable claims. The object was pLalnly to remove mortgage debts from the scope of Section 8 which speaks of "debt or other actionable claim", and to make it necessary to have a registered instrument for its transfer. It was on the application of Section 8 that it was held that the transfer of a mortgage did not require registration and with the non-applicability of the section resulting rtom the amendment one would have thought that all doubts regarding the necessity of having a registered instrument for the transfer of a mortgage right in all cases would have been removed. But the learned Chief Justice thinks as stated above, that though the rule is now clear with reference to mortgage debts in general there is still an exception in favour of mortgages by deposit of title-deeds where promissory notes have also been taken for the mortgage amounts. With every respect for his Lordship's opinion 1 find it difficult to follow it. It is clear from his judgment in the case that he would have held that a registered instrument would be necessary to convey the mortgage rights even in a case of a mortgage lay deposit of title deeds if no negotiable instrument had been taken for the mortgage amount. Does the taking of the negotiable instrument make any difference on the point? I think not, as the mortgage debt is none-the-less a mortgage debt because it happens to be also a promissory note debt. If it is a mortgage debt, Section 8 cannot apply to it and the whole argument based on the section fails.