1. This suit has been heard ex parte as a short cause.
2. As I felt some difficulty in granting reliefs (b) and (c) claimed in the plaint, I heard further arguments both on the question of jurisdiction and as to the effect of the agreement of December 10, 1918 to execute a mortgage.
3. As regards the question of jurisdiction I do not feel any difficulty now. I have dealt with this question in the judgment delivered in Jasraj v. Akubai (1922) O.C.J. .
4. As regards the agreement, I am satisfied that it cannot be used for the purpose of holding that there is a charge on the property mentioned therein. As an agreement to effect a mortgage it would be admissible in evidence : but if it is relied upon as justifying a declaration as to charge as distinguished from a mortgage, it seems to me that it ceases to be a document merely creating a right to obtain another document, but becomes in effect a document operating to create a charge in future 'when the declaration sought is made'.
5. I have considered the argument urged by Mr. Setalvad that the document does not operate to create a charge; but that the charge is the result of such an agreement by operation of law. I am unable to accept the contention. If that is the effect of the document it operates to create such an interest, and would require to be registered. I need not deal with this question at any length. The ratio decidendi in Bengal Banking Corporation v. Mackertich I.L.R. (1884) Cal. 315 appears to me to afford a complete answer to the plaintiffs' contention on this point.
6. I am, therefore, unable to allow any relief to the plaintiffs except the personal relief claimed in prayer (a): interest on judgment at six per cent, per annum.
7. There will be a decree in the plaintiffs' favour in terms of prayer (a) in the plaint: the plaintiffs will not get the Costs of the further hearing on November 9.