KARUPPAN SERVAI Vs. ALAGARA KOUNDAN

JUDGEMENT

(1.) WE are unable to accept the proposition, that in Thambuswamy Moodely v. Hosnain Rowthen I.L.R., 1 M.1 the Privy Council intended to lay down that the erroneous view taken by the Madras Court up to that time of the law was no longer to be taken as enforcible. The reference to legislation upon the point in the judgment of the Privy Council would seem to suggest that the Judicial Committee took no decided view as to whether their own rendering of the law in Pattabhiramaiyar's case 13 M.I.A. 516 or that of the local Courts was to prevail with reference to mortgages executed after 1858. In this state of things and having regard to the proposed legislation in the Bill for the Transfer of Property, the majority of the Full Bench in Ramaswami Sastrigal V/s. Bamiappa Naickar I.L.R., 4 M. 179 held that they were at liberty to deal with the case of a mortgage executed subsequent to 1858 but prior to 1875 with reference to the course of decisions in this country. In regard to mortgages executed between 1875 and 1882 when the Transfer of Property came into force also a similar view has been adopted in Venkatasubbaya V/s. Venkayya I.L.R. 15 M. 230 and Ramayya V/s. Krishna I.L.R. 23 M. 117. The present case is governed by these latter decisions. The appeal therefore fails and is dismissed with costs. The memo, of objections also fails and is dismissed with costs.