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Judgment
The plaintiff has never been in possession, nor has he made his mortgagors parties to the suit. It is conceded he must fail unless Section 74 of the
Transfer of Property Act applies to this case, the argument being that plaintiff stands in the position of first defendant, who has been mortgagee in
possession for over twelve years.
We think it is clear that this section does not apply. Section 74 contemplates the existence of two mortgages at one and the same time and the
independent action of the subsequent mortgagee to put an end to the prior mortgage. It is difficult to see how two usufructuary mortgages could
subsist at the same time, and the language of the instrument clearly proves that the intention of the parties was to extinguish the first mortgage by the
execution of the second. In these cases it is the intention which must be regarded. See Mohesh Lal v. Mohant Bawan Das ILR 9 Cal. 961.
The second appeal fails and we dismiss it with costs.