Anantanarayanan, O.C.J.-

S.A. No. 1389 of 1960 related to a suit filed in the City Civil Court by a certain Visalakshi Ammal (plaintiff) for a declaration that she was the absolute owner of the superstructure in premises comprising Door No 21 Brodies Road, Mylapore. The suit was decreed by the learned Assistant Judge, who gave a finding that the plaintiff was the owner of the mortgaged property in controversy, and also a consequential declaration that the mortgage, executed by Maduraimuthu Naicker, husband of the plaintiff, would not bind the plaintiff with regard to her interest in the property, i.e., the proprietary interest in the superstructure. The first defendant-mortgagee preferred a First Appeal to the Principal Judge of the City Civil Court. That Court confirmed the findings of the trial Court and dismissed the appeal.

The first defendant-mortgagee thereupon instituted S.A. No. 1389 of 1960, which came up for hearing and disposal before Venkatadri, J. The learned Judge went into the evidence, upon which the concurrent findings of fact of the Courts below were based. He then furnished his dissenting conclusion on the main issue of fact in the following form:

“ There is sufficient material to come to the conclusion that the suit property might have belonged to both the husband and the wife. It might have been that Visalakshi Ammal might have constructed the superstructure partly from out of her funds. There is no evidence to show that the entire superstructure was built by Visalakshi Ammal. In the circumstances, I declare that the property belongs both to Maduraimuthu Naicker and Visalakshi Ammal.”

There was a further contention raised on behalf of the appellant (mortgagee) before the learned Judge that, in any event, the appellant was entitled to the benefit of the equity enacted as section 41 of the Transfer of Property Act. The learned Judge (Venkatadri, J.) cited a passage from Sethumadhava Ayyar v. Bacha Bibi 1and came to the conclusion that the mortgagee was entitled to this benefit, in any view. Ultimately, he reversed the findings of the Courts below, and held that both the plaintiff (Visalakshi Ammal) and her husband were the owners, but that the mortgagee would be entitled to work out his remedies only against the right, title and interest of the husband, Maduraimuthu Naicker. Both parties have preferred the appeals, under the Letters Patent, which are now before us.

We might immediately set forth, quite tersely, the questions that now arise for our determination. Firstly, there is the question whether, in Second Appeal, this Court could interfere with a concurrent finding of fact by two Courts below, where no question of law is involved, and where it is not established that there is some failure to consider essential evidence, or some infirmity or defect in the procedure, which would amount to a question of law. Secondly, there is the problem whether, on the merits of the evidence, the learned Judge (Venkatadri, J.) had justification, even assuming that there could be interference in Second Appeal, for differing from the Courts below, and arriving at the conclusion of fact which he has actually reached. Thirdly, there is the question whether the equity embodied in section 41 of the Transfer of Property Act could at all be invoked by, the appellant before the learned Judge, the mortgagee, in the light of the established facts.

We shall take up the second of these questions first, because it seems to us that there were very powerful reasons for the Courts below to hold, on the merits, that the superstructure was the exclusive property of the plaintiff (Visalakshi Ammal), and that she had fully succeeded in establishing that claim. Indisputably, the site itself is leasehold, and the ownership vested in a Devasthanam (Sri Kapaleswarar Temple). There was a prior lease in favour of a third party, and, in September, 1936, Maduraimuthu Naicker, the husband of the plaintiff, took the site on lease. There is no controversy

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