Decided on May 28,1900



Maclean, C J - (1.) I think it sufficient to say that I concur in the view expressed in the case of Keshav Pandurang V/s. Vinayak Hari, (1893) I.L.R. 18 Bom. 355 and also in the two cases of Jethabhai Dayalji V/s. Girdhar (1894) I.L.R. 20 Bom. 158 and Desai Lallu-bhai Jethabhai V/s. Mundas Kuberdas (1895) I.L.R. 20 Bom. 390, a view which seems to be in consonance with that taken of The Himalaya Bank V/s. The Simla Bank (1885) I. L.R. 8 All. 23 and the case of Jagrup Rai v. Radhey Singh (1890) I.L.R. 13 All. 288. I am not disposed to follow the case of Baijnath v. Lachman Das (1885) I.L.R. 7 All. 888, which is not consistent with that taken in the other cases to which I have referred. The appeal therefore fails and must be dismissed with costs. Banebjee, J.
(2.) I am of the same opinion. The learned Vakil for the appellant contends that any view opposed to his contention would necessitate the reading of some qualifying words into Section 50 of the Registration Act after the words, "not being a decree or order," and that whenever an unregistered mortgage is merged in a decree, a transferee under a registered deed subsequent to the mortgage is precluded from claiming the priority under Section 50. The answer to this contention is shortly this, that the words "a decree or order" in Section 50 must mean a decree or order which can be evidence against the subsequent transferee under a registered deed; and in order that a decree Or order may be evidence against a subsequent transferee it must either be a decree or order to which the subsequent transferee was a party, or a decree or order obtained against his transferor before the transfer to him, in which case also the decree will be evidence against him. But where the decree or order is obtained upon an unregistered mortgage-deed against the mortgagor alone subsequent to the registered transfer on which the opposing claim is based, there Section 50 must in my opinion give priority to the claimant under the registered transfer, because in such a case the only basis upon which the mortgagee can rest his claim must be, not the decree, which is not evidence against the subsequent transferee, but the prior unregistered mortgage, and that by Section 50 is entitled to no priority against the subsequent registered transfer. Stevens, J. I concur.;

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