The Madras Law Times Volume 1; Law Notes and Notes of Cases of the Madras High Court and of the English Law Courts (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1906 Excerpt: ... The fourth condition provided that when the creditor became entitled to and possessed of the property, he Sheikh Hub Ali v. Wajir-un-nissa. should be bound to make provision for the. maintenance of certain malt; members of tlie family to which the mortgagor belonged. At the time when the mortgage of the 11th May 1871 was entered into, and also at the time when the representative of the mortgagee took possession of the property, after the death of Raza Ali, the law governing the matter was Bengal Regulation XVII of 1806; the Transfer of Property Act had not passed. Their Lordships think it clear, as did both the Courts in India, that the mortgage of 1871 was in substance, what it describes itself as being, a mortgage by way of conditional sale. For the Appellant it was suggested that the document might be read as containing two separate and distinct transactions, --first, a mortgage by mere hypothecation: which was not a conditional s: vle, and, secondly, a conditional sale which was not a mortgage. This, in their Lordships' opinion, woidd be to apply an artficial and illegitimate method of construction to a document which can be naturally, and without difficulty construed and applied as a whole. Such being the nature of the transaction, the rights of the parties under the Regulation admit of no doubt. The mortgagee or his representative had the right to take legal proceedings with a view to foreclosure; ami that foreclosure he could have obtained, U after the proper steps had been taken, the representatives of the mortgagor had failed lo redeem within the time limited for that purpose by the terms of the Regulation. But there was no right to take possession of the property without the proceedings prescribed hv law. In entering as he did, therefore, the repre.