M.M. Dutt, J.
1. This appeal is at the instance of the defendant and it arises out of a suit for mortgage.
2. The plaintiff is the Life Insurance Corporation of India and its case is that the defendant is the sole and absolute owner of the properties described in Schedules B, B (1) and B (2) of the plaint. On June 14. 1955, the defendant borrowed a sum of Rs. 65,000/- from the Rajasthan Insurance Company Limited by deposit of title deeds and, on that date, executed a promissory note for the said sum in favour of the said Insurance Company and a memorandum embodying the terms of the transaction specifically mentioning therein the deposit of title deeds and the loan of the said amount already taken by him. On December, 29, 1955, the defendant paid a sum of Rs. 975/- in part payment of the interest and since then has paid nothing in spite of repeated demands. The assets and liabilities appertaining to the controlled business of the said Insurance Company having been transferred to and vested in the plaintiff on and from September 1, 1956 under the provisions of the Life Insurance Corporation Act, 1956, the plaintiff is entitled to recover the dues from the defendant on account of the aforesaid mortgage by deposit of title deeds in favour of the said Insurance Company. A sum of Rs. 86,450/- including the sum of Rs. 21,450/- as interest, is due to the plaintiff from the defendant under the aforesaid mortgage. Accordingly, the plaintiff has prayed for a mortgage decree for the sale of the properties in suit.
3. The defendant Sunil Kumar Singh has contested the suit by filing a written statement. It has been denied by him that he is the sole and absolute owner of the properties in suit. It is alleged that the property described in Schedule B to the plaint is the absolute property of his mother who is alive and is in possession there of, and the properties mentioned in Schedules B (1) and B (2) are the properties of the Mitakshara Hindu Joint Family to which he belongs. He has denied that he ever borrowed the sum of Rs. 65,000/- from the said Insurance Company or that he executed any promissory note or memorandum or deposited the title deeds on June 14, 1955, as alleged. It has been alleged by him that he had no necessity to borrow any money at any time, not to speak of such a heavy amount of Rs. 65,000/-, that the alleged promissory note and the memorandum are not genuine documents and that the signatures appearing on these documents are not his signatures. The said documents have been manufactured by some person with an ulterior motive. He has averred that the title deeds relating to the properties in suit were never in his custody or possession and has denied the handing over by him of the title deeds to the said Insurance Company at its office at 23/A, Netaji Subhash Road, Calcutta and payment of the said sum of Rs. 975/- towards interest. The claim which has been made against him by the plaintiff is false and fictitious and the plaintiff is not entitled to institute the suit against him or to recover the alleged dues from him. It is contended that the alleged memorandum is not admissible in evidence without registration as it purports to create a charge. Upon the said allegations, he has prayed for the dismissal of the suit.
4. The learned Subordinate Judge, 6th Court, Alipore has come to the finding that the defendant borrowed a sum of Rs. 65,000/- and mortgaged the properties in suit belonging to him by the deposit of title deeds in favour of the said Insurance Company, as security for the re-payment of the said loan; that he executed the promissory note and its memorandum; that the memorandum was not required to be registered and, as such, it is admissible in evidence and that the suit is maintainable. Upon the said findings, the learned Subordinate Judge has decreed the suit in a preliminary form. Hence, this appeal.
5. We may first of all consider the question as to the title to the properties In suit. Schedule B property is premises No- 28, Lock Gate Road, Calcutta comprising therein 5 cottahs 12 chhataks of land and a partly two storied and partly three storied building. (After discussing the evidence (in the rest of this para and part of para 6) the judgment proceeded):
In our view, there cannot be any manner of doubt that the defendant is als0 the owner of the properties mentioned in Schedules B (1) and B (2) of the plaint and he purchased the same with his own money. Indeed, Mr. Roy, the learned Advocate appearing on behalf of the defendant has frankly conceded that in this state of evidence, he is unable to contend that the defendant is not the owner of these two items of properties or that he had not the custody of the title deeds relating thereto on the material date.
7. In his evidence, the defendant has denied that he had taken the loan of Rs. 65,000/- or executed the promissory note and the memorandum. (After discussing the evidence (Paras 7 to 10) the judgment proceeded):
11. Before leaving the question as to the genuineness of the promissory note and the memorandum, it is necessary to consider the report and evidence of the handwriting expert. In the opinion of the handwriting expert, the signatures in the promissory note and in the memorandum did not tally with the admitted signatures of Sunil. The learned Subordinate Judge has not been able to accept the evidence of the handwriting expert. It has been pointed out by him that the comparison was not made by the expert in open Court before the parties nor were the photographs taken or developed in Court. The report was not forwarded even in a sealed envelope and the photographs were not sent along with the report, but was tendered in Court by the expert, D. W. 1, at the time of his evidence. It has been observed by him that the report, Ext. D is a cryptic one and that even a casual comparison of the mannerism, the peculiarities, pen-pressure etc. of the disputed signatures in Exts. 1 and 2 with the admitted signatures of the defendant, makes it abundantly clear that the writer is the one and the same man. He has pointed out certain similarities between the disputed and the admitted signatures of Sunil and has come to the conclusion that the promissory note, Ext. 1, and the memorandum, Ext. 2, bear the signature of the defendant himself. He has taken the view that some of the noticeable dissimilarities which are laboured ones have been made with deliberate attempts. It has been held by him that these dissimilarities are peculiar to the defendant himself and they identify the author. He is also not impressed with the evidence of the handwriting expert and the manner in which he compared the signatures. We have carefully considered the evidence of the handwriting expert, his report and the photoghaphs of the admitted and the disputed signatures. It appears from the evidence of the expert that for the purpose of comparison of the signatures he did not refer to the photographs nor did he apply any scientific method for such comparison, but on a visual inspection of the signatures he came to the conclusion that the disputed signatures were not the signatures of Sunil. We agree with the reasons given by the learned Subordinate Judge in rejecting the opinion of the handwriting expert and, in our view, he is perfectly justified in holding that the disputed signatures in the promissory note and in the memorandum are the signatures of Sunil.
12. It is contended on behalf of the appellant that the learned Subordinate Judge should not have himself compared the signatures and come to an independent opinion about the same when a handwriting expert had already given his opinion. This contention is without any substance. In Ram Narain v. State of Uttar Pradesh, : 1973CriLJ1187 , it has been observed by the Supreme Court that the opinion evidence may be worthy of acceptance if there is any internal or external evidence relating to the document in question supporting the view expressed by the expert. Further, it has been observed that if after comparison of the disputed and the admitted writings by the Court itself, when the Presiding Officer is familiar with the language, it is considered safe to accept the opinion of the expert, then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered hazardous and inconclusive and that the opinion of the handwriting expert has to be received with considerable caution. By the above observation, the Supreme Court has given a clear indication that in spite of the opinion of the expert the Court is entitled to compare the disputed and the admitted writings. It is also well settled that a decision as to the genuineness of a document cannot be founded solely on the expert opinion. The expert opinion must get support from other evidence so that it may be relied on. In the instant case, the opinion of the expert does not get support from any other evidence. On the contrary, the evidence of Monmohan (P. W. 1) having been believed the opinion evidence of the expert has to be rejected.
13. The last point that has been urged on behalf of the appellant is that there was no mortgage by deposit of title deeds, but a mortgage was sought to be created by the memorandum, Ext. 2, and as the memorandum was not registered as required by Section 17(i)(b) of the Registration Act, it is inadmissible in evidence. The memorandum is in the shape of a letter written by Sunil and runs as follows:
Messrs. Rajasthan Insurance Co. Ltd., 23/A, Netaji Subhash Road, Calcutta.
Premises No. 28, Lockgate Road, Calcutta, Premises No. 71/4, Canal Circular Road. Beliaghata, Calcutta, and
One plot of land measuring 1 Bigha 12 Chittacks lying and situate within municipality of South Dum Dum, 24-Parganas 254 (C. S. Plot No. 254) of Khatian 490 of Khatian 489.
This is to place on record that I have borrowed from you Rs. 65,000/- (Rupees Sixtyfive thousand) only on my promissory note and as security for the due repayment of the loan I hereby deposit with you the undermentioned title deeds.
List of Title Deeds
1. One original English sale deed dated the 26th January, 1938, registered in Book No. I, Volume No. 5 pages 257 to 266, being No. 224 for the year 1938 (Sub-Registrar of Sealdah, Calcutta) and one Affidavit.
2. Original Bengali Sale Deed fromSm. Kishore Debi and another to SunilKumar Singh dated 29th May, 1954, registered in Book No. I, Volume 46, pages64 to 70, being. No. 1949 for the year 1954(District Registrar, 24-Perganas).Dated Calcutta Yours faithfullythe 14th June, 1955 Sunil Kumer SinghIf it is held that the mortgage was soughtto be created by the memorandum, inthat case, the same not having been registered will be inadmissible in evidenceand the suit will fail. No document isnecessary for effecting a mortgage by deposit of title deeds within the meaningof Section 58(f) of the Transfer of Property Act. The question is whether theparties intended to create a mortgage by the memorandum, Ext. 2. The law in this regard has been stated by Sir Richard Couch C. J., in Kedarnath Dutt v. Shamlall Khettry, (1909) 11 Bom LR 405 as follows:
'The rule with regard to writings is that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository, and the appropriate evidence, of their agreement. If this memorandum was of such a nature that it could be treated as the contract for the mortgage, and what the parties considered to be the only repository and appropriate evidence of their agreement, it would be the instrument by which the equitable mortgage was created, and would come within Section 17 of the Registration Act.'
The law as laid down in the passage quoted above was approved by the Privy Council in Subramonian v. Lutchman, (1923) 50 Ind App 77 = (AIR 1923 PC 50), In that case, the Privy Council also referred to its earlier decision in Pranjivandaa Mehta v. Chan Ma Phee, (1916) 43 Ind App 122 = (AIR 1916 PC 115) and observed:
'The law upon this subject is beyond any doubt: (1) Where titles are handed over with nothing said except that they are to be security, the law supposes that the scope of the security is the scope of the title. (2) Where however, titles are handed over accompanied by a bargain, that bargain must rule. (3) Lastly, when the bargain is a written bargain, it and it alone, must determine what is the scope and the extent of the security. In the case before us, the fact that title deeds were handed over along with the memorandum is obvious in view of the word 'hereby' in the first paragraph of the memorandum. This fact, in our opinion, is not significant and that is also conceded to by Mr. Ray. But what is significant is whether the parties intended that the memorandum should be considered by them as the 'only repository, and the appropriate evidence, of their agreement' or it is a bargain which must rule. In order that a writing may be considered or treated as the only repository of the bargain between them it is, in our view, necessary that such a writing should contain the terms of the bargain. In this connection, we may refer to a later decision of the Privy Council in Obla Sundarachariar v. Narayanna Ayyar, (1931) 58 Ind App 68 = (AIR 1931 PC 36). In that case, the documents of title of certain properties were handed over as security for the repayment of a loan along with a promissory note for the amount of loan and a memorandum consisting of a list of title deeds. It was inter alia stated in the memorandum: 'As agreed upon in person I have delivered to you the under-mentioned documents as security'. It was observed by Lord Tomlin that the memorandum was a document which merely recorded the particulars of deeds which were the subject of a deposit and it was and remained a list of the documents deposited and nothing more. Further, it did not embody the terms of the agreement between the parties. Accordingly, it was held that the memorandum was not other than a written record of the particulars of deeds, the subject of an agreement constituted in fact by the act of deposit and the payment of the money, and that it neither purported nor operated to create or declare any right, title or interest in the property included in the deeds, with the result that it did not require registration. Further, Lord Tomlin referred to the Bench decision in Kedar Nath Dutt's case and the decision of the Privy Council in Pranjivandas Mehta's case referred to by Lord Carson in Subramoniam v. Lutchman (Supra) and observed:
'While their Lordships do not think that the language of Lord Carson conveys or was intended to convey the meaning that no memorandum relating to a deposit of title-deeds can be within Section 17 of the Indian Registration Act unless it embodies all the particulars of the transactions of which the deposit forms part, their Lordships are of opinion that no such memorandum can be within the section unless on its face it embodies such terms and is signed and delivered at such time and place and in such circumstances as to lead legitimately to the conclusion that so far as the deposit is concerned it constitutes the agreement, between the parties.'
The principles of law laid down in the aforesaid decisions have been reiterated in a later decision of the Privy Council in Sir Hari Sankar Paul v. Kedar Nath Saha, (1939) 66 Ind App 184 = (AIR 1939 PC 167). It, therefore, follows from the above principles of law that in order that a memorandum can be said to be compulsorlly registrable, it must consist of such terms of the bargain as to lead legitimately to the conclusion that so far as the deposit is concerned it constitutes the agreement between the parties. In other words, the deposit and the document should both form integral parts of the transaction and are essential ingredients in the creation of the mortgage (United Bank of India Ltd. v. Messrs. Lekharam Sonaram and Co., : AIR1965SC1591 ).
14. In the present case, the memorandum, Ext. 2, records that the sum of Rs. 65,000/- was borrowed by Sunil on a promissory note. Therefore, so far as the loan and the promissory note are concerned, the memorandum only records the same. The only portion of the memorandum upon which much reliance has been placed on behalf of the appellant is that the deposit of title deeds was made along with it as security for the due repayment of the loan, and it is contended that the deposit and the document both form integral parts of the transaction- In our opinion, merely because it is stated in the memorandum that the deposit was made as security for the due repayment of the loan, the memorandum and the deposit do not form the integral parts of the transaction. It is true that the amount of the loan and the promissory note have been mentioned in the memorandum and beyond that nothing has been stated about the terms of such repayment. The document is silent about the rate of interest and also about the time for repayment. In the promissory note, there is a stipulation for payment of interest at the rate of 6% per annum. It is, however, contended that although the memorandum does not state the rate of interest, the promissory note has been mentioned therein, and in any event, by virtue of the provisions of the Negotiable Instruments Act, it will be the statutory interest as mentioned in the said Act. We are unable to accept this contention. Where, as in the present case, a definite rate of interest has been agreed upon, the question of payment of statutory interest does not arise. If the parties had intended that the document should be considered as the only repository and the appropriate evidence of their agreement, in our opinion, there should have been mentioned in the document the terms as to the rate of interest and the time of repayment. In our view, therefore, the parties did not intend to create a mortgage by the memorandum, and as such, it is not required to be registered. The memorandum is only evidential.
15. It is contended on behalf of the appellant that there is no oral evidence as to any contract between the parties relating to the mortgage of the properties in suit. It is true that there is no direct evidence that there was a concluded contract between the parties before the memorandum was executed. But as we have held that the memorandum is only evidential, it can be looked into for the purpose of such evidence. Though the point of time as to the advancement of the loan is not material for effecting a mortgage, yet it gives some indication about the nature of the transaction. The money was paid before the execution of the promissory note and the memorandum. The deposit of title deeds was made also before the execution of the memorandum. The affidavit of Anil (Ext. 3) was sworn on June 6, 1955, while the memorandum and the promissory note were executed by the defendant on June 14, 1955. In these circumstances, it can be reasonably presumed that before the affidavit was sworn by Anil, there must have been an agreement about the advancement of the loan. These circumstances, when considered with the statement made in the memorandum, lead to an inference that there was an agreement before the loan was advanced by Anil to his brother, the defendant.
16. In this connection, we may refer to a Bench decision of this Court in Bhairab Chandra Bose v. Anath Nath De, (1920) 24 Gal WN 599 = (AIR 1920 Cal 312) on which much reliance was placed on behalf of the appellant. But instead of supporting the contention of the appellant, it supports the view which we have taken. That decision gives a clear indication that in certain circumstances the point of time when the loan is advanced may be an important factor in the consideration of the question as to the creation of the mortgage by deposit of title deeds. The memorandum, in that case, was in the following terms:
'For payment of the sum of Rupees 1,500/- with interest I have borrowed from you on a promissory note of date, I hereby put on record that the title deeds re: my premises already deposited with you shall be held as a collateral security.' The said amount of Rs. l,500/- was paid to the defendant after the execution of the promissory note and the passing oi the letter. In coming to the conclusion that there was no completed contract of mortgage before the letter passed, which in the circumstances of the case constituted the mortgage and was inadmissible for want of registration, their Lordships inter alia relied on the fact that the payment of the amount was made subsequent to the letter, and held that under the circumstances, it could not be said that there was a completed contract of mortgage before the letter had passed. In the instant case before us, there is evidence that the amount of loan was paid before the memorandum was executed. In these circumstances, we hold that before the memorandum was executed and the documents of title were deposited, there was a completed contract between the parties regarding the equitable mortgage. No other point has been argued on behalf of the appellant.
17. For the reasons aforesaid, the judgment and decree of the learned Subordinate Judge are hereby affirmed and this appeal is dismissed, but in view of the facts and circumstances of the case, there will be no order for costs.
1. I agree