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N.V. Nageswara Aiyar Vs. Alagu Srinivasa Aiyangar (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad743; 94Ind.Cas.427
AppellantN.V. Nageswara Aiyar
RespondentAlagu Srinivasa Aiyangar (Dead) and ors.
Cases ReferredKrishnayya v. Ponuswami Aiyar A.I.R.
Excerpt:
- .....the appellant is that the loans given by the plaintiff's 'father were covered by the deposit of title-deeds. ex. c is a usufructuary mortgage deed executed by the defendant in favour of one desikachariar for rs. 200 on 13th july 1903. this document was deposited to cover the loan. mr, jagannadha aiyar's contention is that this is a title-deed. i am unable to see how a mortgage-deed executed by the owner of a property in favour of a third person can ever be deemed to be a title-deed. a mortgage deed may be evidence of the fact that the mortgagor dealt with the property as his, but in no circumstances can it be considered that a mortgage-deed is the title-deed of the mortgagor. i, therefore, hold that there was no equitable mortgage created by ex. c.2. ex. d is no doubt a title-deed and.....
Judgment:

Devadoss, J.

1. The plaintiff sues upon an alleged equitable mortgage in his favour by Defendants 1 and 2. The other defendants are alienees from Defendants 1 and 2. The District Munsif gave a personal decree and declined to give a mortgage decree against the property covered by the equitable mortgage. The Subordinate Judge dismissed the suit on the ground that the equitable mortgage was not proved and that in consequence the suit was barred by limitation. The contention of Mr. Jagannadha Aiyar for the appellant is that the loans given by the plaintiff's 'father were covered by the deposit of title-deeds. Ex. C is a usufructuary mortgage deed executed by the defendant in favour of one Desikachariar for Rs. 200 on 13th July 1903. This document was deposited to cover the loan. Mr, Jagannadha Aiyar's contention is that this is a title-deed. I am unable to see how a mortgage-deed executed by the owner of a property in favour of a third person can ever be deemed to be a title-deed. A mortgage deed may be evidence of the fact that the mortgagor dealt with the property as his, but in no circumstances can it be considered that a mortgage-deed is the title-deed of the mortgagor. I, therefore, hold that there was no equitable mortgage created by Ex. C.

2. Ex. D is no doubt a title-deed and the evidence of P.W. 2 is that it was deposited on 15th January 1910. He has not been cross-examined on the point and the Subordinate Judge was not right in considering that the evidence did not make out a deposit of title-deed. An entry in the plaintiff's book, Ex. A5, shows, that the two loans of Rs. 350 were covered by the deposit of title deeds. Prom this evidence it is quite clear that Ex. D was deposited for the purpose of creating an equitable mortgage in respect of the loans already advanced.

3. The contention of Mr. Bashyam Aiyangar for the respondents is that there is no evidence as to under what circumstances Ex. D was deposited. But from the evidence and the circumstances it is clear that Ex. D was deposited to cover the loan already advanced. An equitable mortgage by deposit of title-deeds is created by the borrower depositing with the lender his title-deeds. All that is required to create an equitable mortgage in depositing the title-deeds with the lender is the intention of the lender being to hold them as security and the intention of the borrower to leave them as security with the lender. If there is any writing to evidence the transaction that would require registration, in the absence of registration any writing which embodies the transaction cannot be proved. Lord Cairns observes in Shaw v. Eoster [1872] 5 E and 321.

It is a well established rule of equity that a deposit of a document of title, without more without writing, or without word of mouth, will create in equity a charge upon the property referred to.

4. This passage is quoted with approval by their Lordships of the Privy Council in Pranjivandas Jagjivandas v. Chan Ma Phee [1919] 43 Cal. 895. The gist of the transaction, therefore, consists in depositing the title-deed with the intention that it should be held as security. From the evidence of P.W. 2 it is quite clear that Ex. D. was deposited with the plaintiff's father to cover the loan already advanced,

5. The next question is whether the loan of Rs. 50 evidenced by the promissory note dated 2nd June 1910, Ex. G, is covered by the equitable mortgage. Ex. H is a letter written by Defendants 1 and 2 to the plaintiffs' father on 22nd June 1910. In that they say:

Please retain the title-deeds of our under-mentioned property in Koluthur North, Chingleput District, as equitable mortgage of title-deeds for the amount of promissory-note of this day Rs. 50.

6. I consider that this document contains the terms of the arrangement under which the loan was made and, therefore, this, as rightly held by the Subordinate Judge, requires registration and in the absence of registration is not admissible in evidence. Mr. Jagannadha Aiyar relied upon a recent decision of this Court in Krishnayya v. Ponuswami Aiyar A.I.R. 1924 Mad. 547. as supporting his contention that Ex. H does not require registration. In thali case the expression used was:

Let it be known that for that 1 have retained with you as collateral security my document of the collectsr's certificate No. 815 in respect of my house. bearing door No, 11 in Tiruvattiswaranpet, Madras.

7. There the letter refers to a past transaction. If a person writes a letter to another to the effect that he had already left with him certain documents as security for loans already made that letter does not require registration. But Ex. H is not such a letter. It contains the terms on which the loan was advanced and says that the document should be kept with him as security. Therefore, as regards the loan of Rs. 50 the plaintiff is not entitled to get a decree as equitable mortgagee.

8. The Subordinate Judge's decree is set aside and the plaintiff will have a decree for Rs. 350 with subsequent interest in respect of the property covered by Ex, D. The appellant will pay and receive proportionate costs throughout.

9. Time for redemption will be three months from today.


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