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Esther Isaac Ezekiel Mordecai and anr. Vs. Morthu Mull and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.117
AppellantEsther Isaac Ezekiel Mordecai and anr.
RespondentMorthu Mull and ors.
Cases ReferredGokul Das v. Eastern Mortgage and Agency Company
Excerpt:
transfer of property act (iv of 1882), section 59, para. 3 - mortgage by deposit of title-deeds--registration--memorandum, when to be registered. - .....were made over for the purpose of inspection of the property on the 25th february, that a good mortgage was created by the deposit of the title-deeds and that the memorandum was purely a memorandum which did not need registration.2. the law on the subject has been laid down for years in this court and it is clear that when a memorandum creates a mortgage, it comes under the operation of the registration act; but when there is, a deposit of title-deeds independently of it, the deposit creates the mortgage and the memorandum need not be registered. that has been enunciated in the case of kedarnath dutt v. sham lall khettry (2), followed subsequently in numerous cases, among them. oo noung v. mouny htoon oo 13 c. 322 : 6 ind. dec. (n.s.) 715.; gokul das v. eastern mortgage and.....
Judgment:

1. It has been clearly found by both the Courts below that the title-deeds were made over to Sewdutt Roy on the 25th February 1909 for the purpose of ascertaining whether there was sufficient security for the advances already made and a further advance to be made and which had been asked for by the 1st defendant, Mr. Mordecai. The learned Subordinate Judge in his judgment says that he cannot avoid the inference that the security offered was approved and accepted and then the advance was made on the 1st March, As to the memorandum (Exhibit IV) he says, 'it might be signed on the 1st March or two or three days after.' The learned Judge in appeal was satisfied that the title-deeds were made over for the purpose of inspection of the property on the 25th February, that a good mortgage was created by the deposit of the title-deeds and that the memorandum was purely a memorandum which did not need registration.

2. The law on the subject has been laid down for years in this Court and it is clear that when a memorandum creates a mortgage, it comes under the operation of the Registration Act; but when there is, a deposit of title-deeds independently of it, the deposit creates the mortgage and the memorandum need not be registered. That has been enunciated in the case of Kedarnath Dutt v. Sham Lall Khettry (2), followed subsequently in numerous cases, among them. Oo Noung v. Mouny Htoon Oo 13 C. 322 : 6 Ind. Dec. (N.S.) 715.; Gokul Das v. Eastern Mortgage and Agency Company 4 C.L.J. 102 : 10 C.W.N. 276 : 33 C. 410.

3. The second point urged before us also fails upon the findings arrived at by the Courts below. We think that the decree made is good in form and in law.

4. The appeal is dismissed with costs.


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