Guntupalli Venkatasubbayya vs Inturi Venkayya

In Ramasami Sastrial v. Samiappa Naicker (sic) the majority of the court adopting the rule laid down by the Privy Council in Thumbusawmy''s

case 1 held that mortgages executed subsequent to 1858 shall be treated according to what the Privy ""Council considered to be the erroneous

course of decisions. Nothing was expressly decided in that case as to how long this rule shall be followed; but the principles kept in view appears

to be that that which had been, though erroneously, suffered to be the law in, Madras shall be followed as to mortgages after 1858, until the

legislature interferes to settle the law. In the present case the District Judge has laid d''6wn a new rule that mortgages executed after the date of the

Privy Council decision in Thumbusawmy''s case (1875) must be treated as governed by the principle of that decision. We are not prepared to

adopt this principle and so still further unsettle rights created by mortgages in this Presidency. We consider that under the Privy Council ruling the

courts of this Presidency are at liberty to apply the doctrine of English Courts of Equity to mortgages executed after 1858, until the legislature

settled the law as it has been done by the Transfer of Property Act. It is not in favour of the new rule which the District Judge propounds that there

has been no decision to that effect in Madras, though it is now 16 years since the Privy Council''s decision in Thumbusawmy''s case. We think the

District Munsif''s view right and we reverse the decree of the Lower Appellate Court and restore that of the Munsif, Respondents must pay

appellant''s costs in this and in the Lower Appellate Court.