Judgement

Appeal (No. 102 of 1928) from a decree of the High Court (July 15, 1927) modifying a decree of the District Judge of Magwe.

The suit was instituted by the appellants to enforce a mortgage dated March 13, 1924.

The questions arising upon the appeal were (1.) whether the mortgage was invalid under s. 53 of the Transfer of Property Act, 1882 ; and (2.) whether the registration of the mortgage was invalid, because when registered it was not duly stamped, as required by the Indian Stamp Act, 1899, s. 35.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

Both Courts in India held that the registration having been effected in good faith it was valid under s. 87 of the Indian Registration Act, 1908, although the instrument was not duly stamped at that time.

The District Judge decreed the suit holding that though the mortgage was a preference of the mortgagees over other creditors of the mortgagors it was not invalid under s. 53 of the Transfer of Property Act.

Upon appeal to the High Court the learned judges (Heald and Mya Bu JJ.) were of the contrary opinion; accordingly they varied the decree to a simple money decree.

1929. June