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TYRRELL, W. COMER PETHERAM
Himalaya Bank Limited – Appellant
Versus
Simla Bank Limited – Respondent
JUDGMENT
W. Comer Petheram, C.J. - I am of opinion that this appeal must be allowed, and that judgment must be given in favour of the plaintiff. The real question in the case is, whether the title of the Himalaya Bank or that of the Simla Bank should prevail with respect to the mortgages executed by the defendant, Mrs. E. McMullen. The facts of the case are, that on the 30th June 1881, the defendant, Mrs. McMullen, mortgaged a house in Saharanpur to the Simla Bank, to secure a sum of money. The mortgage deed was never registered, and the amount due upon it was never paid off. On the 17th July 1883, the same mortgagor executed a mortgage-deed in respect of the same house in Saharanpur in favour of the Himalaya Bank, to secure a sum of money, and this deed was duly registered on the 10th August 1883. There is no finding on the subject, but it must be assumed for the purposes of this case that the Himalaya Bank had no knowledge of the mortgage-deed of the 30th June 1881, which at the time of their own deed, was not registered.
2. The first question is, what was the condition of the titles to the property in suit at the time of the registration of the second mortgage-deed? The titles her
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