JUDGMENT : I think that the courts below rightly held that S. 9A of Madras Act IV of 1938 (as it stands after amendment by Madras Act XXIV of 1950) applied to the mortgage in suit. And, that being the only question that arises in this second appeal by the mortgagee defendants I and 2, it follows that this appeal has to be dismissed. 2. Ext. B1 dated 10-4-1913, the mortgage in question, was for Rs. 1000/- and was over four items of property, with possession so far as two item were concerned and without possession so far as the remaining two items were concerned, so that the mortgage was partly possessory and partly simple. The pattern of the two items of which possession was made over was fixed at Rs. 95/-, and it was said that, out of this sum, the mortgagee should retain Rs. 75/- in lieu of interest on the mortgage money, deduct a further sum of Rs. 7-8-0 for certain expenses, and pay the balance of Rs. 12-8-0 to the mortgagor as purapad. The question is whether such a mortgage falls within the scope of S. 9A, the relevant portion of which runs as follows : “Special provision in respect of usufructury of mortgages. 9-A. (1) This section applies to all mortgages executed at any time before the 30th September, 1947, and by virtue of which the mortgage is in possession of the property mortgaged to him or any portion thereof- (a) where no rate of interest is stipulated for as due to the mortgagee, or (b) where a rate of interest is stipulated for as due to the mortgagee in respect of the principal amount secured by the mortgage or any portion thereof, in addition to the usufruct from the property, or in respect of any other sum payable to the mortgagee by the mortgagor in his capacity as such. xxx xxx xxx xxx The first argument advanced on behalf of the appellants - and it is advanced on the strength of Thirumulpad v. K.K. Krishnan Nair (AIR. 1958 Madras 117) - is that the section applies only to usufructuary mortgages as defined by section 58 (d) of the Transfer of Property Act and that the suit mortgage is not such a mortgage. I am prepared to assume that the suit mortgage is not a usufructuary mortgage pure and simple. 1958 Madras 117) - is that the section applies only to usufructuary mortgages as defined by section 58 (d) of the Transfer of Property Act and that the suit mortgage is not such a mortgage. I am prepared to assume that the suit mortgage is not a usufructuary mortgage pure and simple. Even so I have little hesitation in rejecting the argument which has for its basis nothing more than the marginal note and which, in the matter of the construction of a section, would place the marginal not above the language of the section itself. For, it is clear from the section that it applies to all kinds of possessory mortgages, whether possession is made over in respect of the whole or only a portion of the property mortgaged, provided that either of the alternative conditions in the two clauses is satisfied. In the face of the express language of the section, there can be no doubt whatsoever in the matter, and if it were necessary to reconcile the marginal note with the section itself - it is certainly not the other way about - I would say that the marginal note uses the term, “usufructuary mortgage” in a special sense, not in the sense of S. 58 [d] of the Transfer of Property Act, but in the sense defined in the very section to which it is a note. That that is so is apparent from the history of the section, for, when S. 9A was first introduced by Madras Act XXIII of 1948, it spoke of a usufructuary mortgage in describing the mortgages coming within its ambit, and it then carried an explanation in the following terms: “Usufructuary mortgage” as used in this section means any mortgage by virtue of which the mortgagee is in possession of the property mortgaged, where no rate of interest is stipulated, as due to the mortgagee”. When this section was replaced by the present S. 9A by Madras Act XXIV of 1950, the term; “usufructuary mortgage” was dropped, and the explanation was carried into the body of the section itself with certain additions. The marginal note was however retained without any modification. When this section was replaced by the present S. 9A by Madras Act XXIV of 1950, the term; “usufructuary mortgage” was dropped, and the explanation was carried into the body of the section itself with certain additions. The marginal note was however retained without any modification. In the original S. 9A, the marginal note used the term “usufructuary mortgage” in the special sense in which it was defined in the explanation to the section, and there can be no doubt whatsoever that the marginal note in the new S. 9A also uses that term in the same special sense defined in the section itself. 3. I might add that there is nothing in the several provisions of S. 9A to give the least indication that the section is applicable only to usufructuary mortgages pure and simple and is not applicable to all kinds of possessory mortgages which satisfy the requirements of clauses (a) and (b) of sub-section (1). Nor is it easy to think of any reason why its application should be so restricted. 4. It is true that the decision cited on behalf of the appellants supports their stand, but with great respect I am not, for the reasons stated above, able to accept that decision as correct. I might also say that in Jagannatha Aiyangar v. Senniveera Chettiar (1941) 1 MLJ. 197 ) where the similar language of S. 10 (2) (l) of the original Act IV of 1938, “any mortgage by virtue of which the mortgagee is in possession of the property mortgaged, where no rate of interest is stipulated as due to the mortgagee” came up for consideration, it was observed that that provision was not confined to mortgages which are usufructuary mortgages within the terms of S. 58 (d) of the Transfer of Property Act. It would apply to all possessory mortgages satisfying the condition mentioned, whether usufructuary or anomalous. 5. The next argument is that the suit mortgage does not fall within either clause (a) or clause (b) of S. 9 A (1). Whether or not it falls within clause (b), we need not stop to consider - the respondent has no case that it does - for it is abundantly clear that it falls within clause (a), and the two clauses are in the alternative. It is true that the mortgage deed speaks of the mortgagee retaining Rs. Whether or not it falls within clause (b), we need not stop to consider - the respondent has no case that it does - for it is abundantly clear that it falls within clause (a), and the two clauses are in the alternative. It is true that the mortgage deed speaks of the mortgagee retaining Rs. 75/- as interest on the mortgage money, and that if that were really so the rate of interest would be a matter of mere arithmetical calculation. But the point to note is that what the mortgagee actually retains in lieu of interest is not this sum of Rs. 75/- but the entire profits from the land, less the deduction and the purapad payable. There is to be no account of the profits so that if what remains for the mortgagee is mere or less than the estimated Rs. 75/-, he takes the benefit or the detriment as the case may be, and there is no question of his making any payment to the mortgagor or the mortgagor making any payment to him on that account. As explained in Vasudevan v. Manavikraman (AIR 1943 Madras 525), Jagannadham v. Narasimham (AIR 1944 Madras 501) and Devaki Kutty Amma v. Kandanakan ( 1957 KLT 840 ) this device of estimating profits, making a deduction on account of interest, and fixing the balance as the purapad payable is only a method of determining the purapad and does not in truth fix the interest payable so that it cannot be said that any definite sum is stipulated for as due to the mortgagee as interest. Therefore there can be no question of any rate of interest having been stipulated. Manavala Ayyar v. Muhammad Yoosuf (AIR 1943 Madras 100) relied upon on behalf of the appellants has no bearing, for there in addition to the mortgagee retaining the profits, the mortgagor was to pay a fixed sum by way of interest on the principal, and the rate of interest being a mere matter of arithmetical calculation it follows that there was a rate of interest stipulated for as due to the mortgagee. 6. It is next said - and this seems to be an argument of even less force - that the 1st defendant, the mortgagee under Ext. B1, being a woman there is the possibility of her coming within the exemption in S. 4 (h) of the Act. 6. It is next said - and this seems to be an argument of even less force - that the 1st defendant, the mortgagee under Ext. B1, being a woman there is the possibility of her coming within the exemption in S. 4 (h) of the Act. But this is something to be pleaded and proved by her, not something to be put forward by way of mere conjecture in second appeal. The judgment of the first court shows that the 1st defendant had no case there that she was entitled to the exemption. 7. I dismiss the appeal with costs. Dismissed.