Victor Murray Coutts Trotter, C.J.
1. I am of the same opinion. I have had doubts in this case but the argument that concludes the matter to my mind is the fact which is known to every one familiar with these matters, viz., that, in many cases, the piece of paper which we call a patta is the only document that a ryot holds in respect of his; land, and that to say he cannot effect a valid equitable mortgage of that piece of paper, would be in effect to say that he could not equitably mortgage his land at all a result which I cannot believe to have been the desire of, or contemplated by, the framers of the Transfer of Property Act. I would rather wish to guard myself against the suggestion of my learned brother that, where a statute gives a definition for an instrument, that definition can be controlled by the understanding of the common people with regard to it, but I do not think that the decision of this case turns on that.
2. Finally, I have to say this. As this is a subject-matter with which I am very unfamiliar, I should require very grave reasons indeed to dissent from the opinion of two of my colleagues to whom the subject is familiar and who are acquainted with the land tenures of this Presidency in a way in which I cannot pretend to be.
3. I therefore agree in the result.
Srinivasa Aiyangar, J.
4. The only point raised and argued in this appeal is whether a patta in respect of land in the mofussil of the Presidency is such a document as by the deposit of which in the City of Madras an equitable mortgage over the property can be said to be validly created. The contention is that a patta is not a title deed or a document of title relating to property and that therefore the deposit of a patta cannot serve to create an equitable mortgage over the property. It is true that a patta has been held in various cases not to be a title deed, but in none of those cases had the questions been raised or had to be decided with respect to a patta being a title deed or a document of title for purposes of the creation of a mortgage by mere deposit. It is quite true that a patta is not a title deed in all senses of that expression or for all purposes but at the same time it is clear that what is requisite for the creation of an equitable mortgage is firstly, an intention to create a security, and secondly such intention evidenced by a document which can be described as a document of title. There is no question here in this case about the intention. Is then a patta in respect of land a document with respect to property such as would be sufficient by being deposited to evidence the required intention? It must vary according to the conditions of the country and the consciousness on the part of the members of the community. In England it has been held that all the material documents of title need not be deposited and that a complete title need not be shown by the deeds deposited to the depositor's interest in the estate. [Ex parte Wetherell 11 Ves Junior 398]. In that case Lord Chancellor Eldon was inclined to hold that that would be taken to be a sufficient deposit which could be taken upon looking at the instruments to amount to evidence that the estate was meant to be security. Thus in the absence of title deeds a receipt for purchase-money containing the terms of an agreement for sale was deemed sufficient. [Goodwin v. Waghorn 13 LJ 172]. In the case of copyholds, copies of Court-rolls and in the case of a leasehold land, an office copy of the registered lease, have been held to suffice. In Ireland a map of the property was by deposit held to create an equitable mortgage [Simmons v. Montague (1909) Irish Reports 87]. So far as South India is concerned, there is no doubt that a patta has generally been regarded as a document of title. I use the words 'documents of title' and not 'title deed,' because it may be that there is some plausible distinction between the two expressions. I have no hesitation in holding that a patta has always been regarded by people in this country as a document of some evidence with regard to possession if not also to title. The original meaning of the word 'patta' appears to have been ' a lease, ' but it has always been used to indicate what is called occupancy right, that is, whether it be under a landlord who is a Zamindar or under the Government as suzerain occupancy right, which is really recognised to be practically proprietary right in the soil. Having regard to this meaning that the expression 'patta' has acquired among the landowning classes, it will lead to serious results if it should be held that a patta is not such a document of title as by depositing which an equitable mortgage could not be created. As a matter of fact, I am not at all sure whether in respect of a very large percentage of property in the country, there are any documents of title at all other than pattas.
5. I therefore hold that the learned Judge was right in holding that a patta was such a document as by depositing which an equitable mortgage could be created. The appeal therefore fails and is dismissed with costs on the Original Side scale.