Madras High Court
H.G. Nanjappa vs M.F.C. Industries (P) Ltd. on 17 January, 1986
Equivalent citations: AIR1987MAD108, (1987)IMLJ180, AIR 1987 MADRAS 108, (1987) 1 MADLJ180 (1987) 100 MADLW 4, (1987) 100 MADLW 4
ORDER
1. This revision petition fled by the defendant is directed against the order made by the District Judge of Nilgiris at Uthagamandalam that the memo of deposit of title deeds in the instant case did not require registration and was, therefore, admissible in evidence.
2. The question arises in the following way : The plaintiff brought a suit against the defendant-present petitioner claiming a sum of, Rs. 22,168, on the basis of a promissory note executed by the defendant on 22-4-1980. This amount, according to the plaintiff, was the price of fertilizers supplied to the defendant by the plaintiff-company. The promissory note makes the amount of Rs. 20.062-29 p. payable with interest at 1.50 per cent per annum. On 1-7-1980, the defendant deposited title deeds in respect of his property, according to the plaintiff, with intent to create an equitable mortgage of the property covered by the title deed for repayment of the moneys due under the promote dated 22-4-1980. The plaint alleges that the letter dated 1-7-1980 creating equitable mortgage and the memorandum accompanying the deposit of title deeds together with the title deeds dated 24-11-1 %6 and 9-12-1966 and the encumbrance certificate are also filed.
The memorandum in dispute reads as follows -
Equitable mortgage (Memorandum accompanying a deposit of deeds.) I. H. G. Nanjappa, son of Hanuma Gowder, Hindu, resident of Yellanahalli, Ketti village, the Nilgiris, in consideration of the sum of Rs. 20,062-29 np. (Rs. Twenty thousand and sixty two and np twenty nine) advanced to me by Messrs. Mysore Fertilizer Co., Commercial Road, Ootacamund, on a promissory note, which I do hereby acknowledge, have this 1st day of July 1980 at Coimbatore, deposited with the said Messrs. Mysore Fertilisers Co., the deeds and documents set out in the list hereto, as security for the repayment of the said sum of Rs. 20,062.29 np. with interest thereon at 18 percent per annum from the date hereof till full payment.
As witness my hand this I st day of July, 1980.
Sd/-
Mortgagor.
List of deeds deposited-
1. Registered sale-deed dated 24-11-1966 executed by M. Ajja Gowder and Kala Gowder in favour of H. C. Nanjappa (Document No. 1355 of 1966).
2. Registered sale deed dated 9-12-1966 executed by N. R. Purushothama Naidu in favour of H. G. Nanjappa (Document No. 1430 of 1966).
3. Nil encumbrance certificate in respect of properties from I- 1- 1968 to 13-2-1980 issued by the Sub Registrar, Coonoor.
(Mortgagor)"-
3. Apart from the money decree claimed by the plaintiff, the plaintiff also claimed a decree declaring that the amount is due under the mortgage deed dated 1-7-1980, and directing the defendant to deposit the said sum into Court on or before a date to be fixed by the Court and on failure to make such deposit, the plaintiff asked for a direction for the sale of the properties which are the subject matter of the equitable mortgage.
4. The defendant in the written statement denied that there was any consideration for the promissory note. He has further pleaded that since there is no consideration for the promissory note, the deposit alleged also has no consideration and is not enforceable. He further took the plea fiat the memorandum alleged is not admissible in law and is bad for want of registration and the suit laid as one on a mortgage is not sustainable in law.
5. Parties went to trial and when the evidence of the plaintiff was being recorded and the plaintiff wanted the memorandum to be marked as an exhibit, an objection was taken on the ground that the memorandum required registration. The order of the teamed District Judge shows that the matter was exhaustively argued before him. The learned Judge posed the question whether the parties intended to reduce their bargain regarding the deposit of the title deeds to the form of a document and pointed out that if that was the intention, the document would require registration and if on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then there being no express bargain the contract to create the mortgage arises by implication of the law from the deposit itself and in sucb a case, the document being merely evidential did not require registration. The learned Judge relying on the decision of the Supreme Court in United Bank of India v. Lekharam S. and Co., ; K. Bhavana-rayana v. S. Venkataratnam, , Sunil Kumar v. Life Insurance Corpn., and L. A. N. Alagappan v. Kalyanasundaram, , took the view that the deposit of title deeds "made by referring to the promissory note already executed earlier" did not., in his opinion, make the memorandum the sole document evidencing the terms of the bargain. He took the view that the memorandum only confirmed the execution of the promissory note and "the memorandum and the promissory note could not, therefore, be considered as integral parts of one transaction, but on the other hand. the deposit was made more than two months after the execution of the promissory note". Thus, holding that the memorandum did not require registration the objection raised by the defendant was overruled and the memorandum was directed to be marked as an exhibit. The defendant has now filed this revision.
6. The learned counsel appearing on behalf of the defendant has contended that the documents in question contain all the essentials for creating an equitable mortgage and that the document itself operates to create interest in immovable property. It is pointed out that the plaintiff is relying only on the documents in question and there is no other evidence to show that an equitable mortgage was created. My attention has been particularly drawn to the description of the, document as 'equitable mortgae (Memorandum accompanying a deposit of deeds)" and a reference is made to paragraph 4 of the plaint in which the plaintiff has positively alleged that "the defendant herein also executed a mortgage deed in favour of the plaintiffs company on 1-7-1980 and deposited his title deeds at Combater with the plaintiffs Regional Office, with intent to create an equitable mortgage on the property covered by the title deeds for repayment of the moneys due under the pronote dated 22-4-1980 in respect of fertilizers supplied to him." It is, therefore, argued that the document dated 1-7-1980 has been referred to by the plaintiff himself as a mortgage deed executed in favour of the plaintiffs company. Therefore, according to the learned counsel for the defendant, the document required registration and in the absence of registration, it could not be admitted in evidence. Reliance has been placed on certain decisions to which I shall refer later.
7. On the other hand, the plaintiffs contention is that the document in question was merely intended to be evidence of the fact that the defendant has deposited the title deeds and merely because the mortgagor has stated that the deeds and documents are deposited with the plaintiff as security for the repayment of the loan and if in law such a document cannot be construed as creating any interest in the property which was the subject-matter of the equitable mortgage, then notwithstanding the description of the document or the reference to the title deeds being deposited as security for the repayment of the loan with interest thereon, it could not be held to be inadmissible for want of registration.
8. The learned counsel has mainly relied on three decisions of the Supreme Court in support of the proposition that the document in question did not require registration. The three decisions are Rachpal v. Bhagwandas, ; United Bank of India v. Lekharam. S. and Co., and D. D. Seal v. R. L Phurina, . Retiance was also placed on the decision of the Calcutta High Court in Sunil Kumar v. Life insurance Corpn., and a Division Bench decision of this Court in, Alagappan v, Kalyanasundaram Iyer, .
9. Under S. 17 of the Registration Act, by Cl. (b) thereof, non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish. whether in. present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property are compulsorily required to be registered. Under S. 49 of the Registration Act, no document which is required by S. 17 to be registered can be received as indene of any transaction affecting such property or conferring any power unless it has been registered. Unless, therefore, the document dated 1-7 1980 can be construed as an instrument which creates any right in any immovable property, the document will not require registration. On the other hand, if the document has the effect of creating a right in immovable property, in the sense, that it amounts to effect the mortgage of the property in respect of which the title deeds are deposited, it will be under S. 17 of the Registration Act.
10(a). Under S. 58(a) of the Transfer of Property Act, a mortgage is the transfer of an interest in specific immovabity- property for the purpose compulsorily register able of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or th-1 predominance of an engagement which may give rise to a pecuniary liability.
10(b). In so far as the present case is concerned, if there is a mortgage, that mortgage will amount to a transfer of an interest in the immovable property in respect of which the title deeds have been deposited with the plaintiff for securing the payment of the money in respect of which the promissory note is said to have been executed by -,the defendant. What is a mortgage by deposit, of title deeds is provided for in S. 58(f). This provision reads as follows-
"..........Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay, and in any other town which the State Government concerned may, by notification in the official Gazette, specify in , this behalf, delivers to a creditor or his agent documents of title of immovable property with intent to create a security thereon. the transaction is called a mortgage by deposit of title deeds."
11. Thus, if there is a debt and if title deeds are deposited by the debtor with an intention that the title deeds shall be security for the debt, then by the mere fact of deposit of those title deeds, a mortgage comes into being. However, sometimes, a deposit is accompanied by a memorandum in writing and even though physical delivery of the documents of title is suffice the question arises as to whether a memorandum which accompanies the. deposit of title deeds requires registration. In such a case, the essential question which fails for consideration is whether the memorandum by itself constitutes bargain between the parties or whether it constitutes evidence of the contract between the parties.
12. In Obla Sundarachariar v. Narayana Ayyer, AIR 1931 PC 36 their Lordships of the Privy Council observed that 'no such memorandum can be within the section (S. 17 of the Registration Act) 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.
13. As far back as in 1873, such a question came to be considered by the Calcutta High Court in Kedarnath Dutt v. Shamlal Khetry, (1873) 2k Suth WR 150. In that case, one Shankarlal had advanced Rs. 1,200 to the borrower who deposited the title deeds and executed the promissory note for the amount. On the promissory note he made the following, endorsement- 'For the repayment of the loan of Rs. 1,200 and the interest due thereon of the within note of hand, I hereby deposit with Shamial Khetry, as a collateral security by way of equitable mortgage title, deeds of my property". Sir Richard Couch hold that such a memorandum was not i he indumenta by which the equitable mortgage was created, nor was it the evidence of the contract, and, therefore, it did not come under S. 17 of the Registration Act, and the equitable mortgage was created by the agreement which was evidenced by the loan and the deposit of title deeds. It has to be noted that the view taken by Sir Richard Couch was that notwithstanding -the fact that the endorsement specifically referred to the deposit of title deeds, it was a collateral security by way of equitable mortgage.
14. A similar question fell for consideration before the Supreme Court in D. D. Seal v. R. L Phumra, . The test which was laid down by the Supreme Court was that in order to require registrant the document must contain all the essentials of the transaction and one essential is that the tide deeds must be deposited by virtue of the instrument or acknowledge an earlier deposit of tide deeds and say further that the tide deeds shaft be held as security on the said mortgage. The relevant letter in the case before the Supreme Court read as follows-
"I write to record that I delivered to and deposited with you this day my title deeds relating to the premises No. 36 Pudupakur Road Calcutta, solely, belonging to me with intent to create security for my liability for the moneys payable, under the three hundies dated this day for the sum of Rs. 80,000 ' drawn by me in your favour and I have undertaken to execute legal mortgage at my costs whenever called upon by you to do so. I further assure you that the said premises No. 35 is free from all encumbrances and the same absolutely belongs to me."
Construing this letter in the light of the surrounding circumstances the Supreme Court took the view that it was merely record of a past transaction and did not intend to create any mortgage. Undoubtedly, in that case there was an additional circumstance in favour of the plaintiff that the defendant had undertaken to execute a legal mortgage. The Supreme Court further pointed out in that case that it was not correct to-say that even if a document on the face of it and properly interpreted in the light of the circumstances does not' disclose the creation of a mortgage, or even if the document itself is not an operative instrument and is merely evidential, it requires registration.
15. In D. D. Seal's case , the Supreme Court referred to the earlier decision in United Bank of India case, . In United Bank of India case, the document read as follows-
"This is to place on record that I have this day deposited with you at your head office at Clivel SL, Calcutta, the under noted documents of title relating to my properties, viz., Giridh Malho properties as described in the title deeds with intent to create an equitable mortgage upon all my rights, title and interest in the said properties to secure the repayment on demand of all moneys now owing or which shall at any time hereafter be owing from me I do hereby put on record that the properties mentioned below are free from all encumbrances."
The aforesaid document was held by the Supreme Court as recording a transaction which had already been concluded and under it, rights and liabilities had already been agreed upon.
16. A similar view had already been taken earlier by the Supreme Court in Rachpal v. Bhagwandas, . After referring to the provisions of S. 58(f), Transfer of Property Act, the Supreme Court in paragraph 4 of that decision observed as follows-
"That is to say, when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S. 59 as in other form of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case, the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S. 17, Registration Act, 1908 as non-testamentary instrument creating -an interest in immovable property, where the value of such property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title deeds and yet may not be registrable as in Obla Sundarachariar v. Narayan Iyer, (1931) 58 Ind App 68: (AIR 1931 PC 36)."
The Supreme Court further observed-
"The crucial question is : Did the parties intend to reduce their bargain regarding the deposit of title deeds to the form of a document? If so, the document requires registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then there being no express bargain, the contract to create the mortgage arises by implication of the Jaw from the deposit itself with the requisite intention, and the document, being merely evidential does not require registration."
17. The question, therefore, which must be posed in a case like the present one is, did the parties intend to reduce their bargain regarding the deposit of title deeds to the form of a document ? It has to be pointed out that the defendant has admitted that the title deeds were deposited. It is he who has executed the memorandum and the memorandum merely states that he has deposited with the said company "the deeds and documents set out in the list hereto as security It is not the case of the defendant that there was an agreement between the parties that the mortgage was to take effect only on the execution of this memorandum. The memorandum clearly and plainly appears to me to be something in the nature of a forwarding letter or acknowledging the fact that the defendant has deposited the said deeds of title as security which is obvious, because, according to the plaintiff, there is admittedly a promissory note which has been executed much earlier and a sum of money was due on the basis of the said promissory note. The mere statement that a deposit is made by way of security for the repayment of the loan cannot be read as a contract which is arrived at by the document itself. The document, therefore, cannot be read as recording an agreement between the parties, namely, the agreement to create a mortgage by deposit of title &eds.. It is at best an evidence of the fact that the title deeds have been deposited with the plaintiff.
18. It is undoubtedly true that in the United Bank of India case cited (supra) which is relied upon by the learned counsel for the defendant, the Supreme Court has pointed out that if the parties choose to reduce the contract to writing, the implication that when a debtor deposits with the creditor title deeds of his property with an intent to create a security, there is a contract between the patties to create a mortgage is excluded by their express bargain and the document will be the sole evidence of its terms. The Supreme Court pointed out that in such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. However, it must be pointed out that on the facts of that case, the Supreme Court held that since the letter in question did not mention details of title deeds which were to be deposited with the Bank and neither mentioned what was the principal amount borrowed or to be borrowed nor it referred to rate of interest for the loan, the letter was not intended to be an integral part of the transaction between the parties and did not by itself operate to create an interest in the immovable properties, and, therefore, it did not require registration. What is important is that the Supreme Court quoted with approval the rule laid down by Sir Richard Couch in Kedarnath's case (1873-20 Suth WR 150). There is nothing on the facts of the present case to show that the memorandum accompanying the title deeds was intended to be a contract of mortgage reduced in writing by the parties which meant also the plaintiff. The memorandum cannot be so read 9s meaning that the plaintiff and defendant had agreed to reduce the transaction of mortgage to writing. The memorandum which is signed, by the defendant cannot be construed as an integral part of the transaction of mortgage or intended to create an interest in the subject-matter of the mortgage.
19. In Bhavanarayan-a v. Venkitaratnam, AIR 1971 Andh Pra 359, the Division Bench of the Andhra Pradesh High Court reiterated the rule that though a mortgage by deposit of title deeds can be created by mere deposit of title deeds without any written contract between the parties, but once the bargain or contract is reduced to writing, it must be registered. The Andhra Pradesh High Court was merely giving effect to the ratio of the decision in United Bank of India case . The finding rebred by the High Court that the document in question in that case by its language showed that the creation of mortgage was not a part and dissociated from the document and that the letter did not show that it was merely evidential of something which either had already been done earlier or to be done in future, must be read as being reached on the facts of that case. As a matter of fact, the question whether a document in question was agreed by the parties as a part of the arrangement to create a mortgage by deposit of title deeds has to be decided on the facts of each case. Though the principles are well established, their application will depend on the facts as found. The Andhra Pradesh case does not, therefore, lay down any new principle but applied the well-established principle to the parts in that case.
20. There are decisions of this Court to which a reference may become necessary. The latest decision is Alagappan v. Kalyansundara Iyer, , in which a Division Bench of this Court has reiterated the principles referred to by me earlier. After referring to several decisions, the Division Bench ob served as follows in paragraph 9 : -
"............ One telling principle which has emerged from the ratio of the decisions, however, is that if there is evidence, either extrovert or introvert, which would compel a Court to hold that under a single bargain the borrowing and the deposit of title deeds were effected and that the intention is made clear and public only in such a contemporaneous transaction, then a memor4ndum evidencing such a bargain needs registration. It may. Be that the memorandum contains a recital as to the quantum of the amount borrowed. That would not make the memorandum any the less a non-registrable one, provided it is an independent transaction and not the sole bargain to evidence the deposit of title deeds. The only important feature on which the Court should pay its concentrated attention is that the deposit of title deeds should have taken place earlier than the time of the writing of the memorandum. If such a dissociation in point of time is apparent from the memorandum itself, or if it could be discovered from the totality of the facts and appreciation of the surrounding circumstances, then the plaintiff can successfully pilot his case on the foot of an equitable mortgage and obtain a mortgage decree. If, however, the Court is not satisfied about the earlier deposit of title deeds, but if the memorandum projected is the only piece of evidence whereby the equitable mortgage is created, then notwithstanding the nicety of expressions used therein, the Court has to hold that such a memorandum is not admissible in evidence for want of registration."
21. The learned counsel for the defendant has heavily relied on this decision. The present case does not fall in the first part of the observations reproduced earlier because the liability in respect of which the mortgage by deposit of title deeds has been made is not contemporaneous with the mortgage itself. The liability which was sought to be secured by the mortgage in question was already existing on the date on which the memorandum was written, namely, 1-7-1980. However, though the Division Bench observed that there has to be a dissociation in point of time in order to separate the memorandum from the actual deposit of title deeds, it may not be necessary in all cases. It will depend on the manner in which the memorandum is worded and there may be a case like the instant one in which notwithstanding that the deposit of title deeds is made contemporaneously with the memorandum, if the memorandum was n6t intended to create the mortgage and was merely intetid6d to. convey to the defendant like, a forwarding letter that the necessary title deeds are deposited with the plaintiff as security for the liability, the mere mention of such liability Would not make the document a registrable one. The present case, in my view, does not fall within the ratio of the latter part of the observations in Alagappa's case .
22. Another Division Bench of this Court in Modem Housing Construction v. Alagappa Textiles, (1972) 2 Mad U 319, laid down the test as follows-
"The real test to find out whether a memorandum recording handing over title deeds requires registration or not is to ascertain whether the memorandum represents the bargain between the parties"
With this test there can never be any dispute. Thus the only question which has to be decided on the facts of each case is as to whether this test is satisfied. The documents in question in that case were Exs. P-3 and P7, the material parts of which read as follows-
"Ex. P-3: Besides 1, Dr. R. M. Alagappa Chettiar hand over to, you my title deeds relating to the guest house by way of further security in respect of the aforesaid liability."
Exs. P-7 and P-42 : I hereby agree that the title deed of the guest house property already deposited with the company will remain with them as collateral security for the above promissory note until it is fully discharged." It was on the language of the aforesaid document that the learned Judges of the Division Bench felt that the memoranda, Exs. P-7 and P-42, required registration. This decision must be treated as one on facts of that case.
23. In Indersain v. Md. Raza Gowher, the Division Bench took the view that in the case of an equitable mortgage, if the document had been deposited before the execution of the writing reciting it, that is, if the documents had been handed over to the creditor as security for the loan and the writing or letter merely recoded a past transaction there would be no need for registration of the letter for a valid equitable mortgage. The Division Bench also observed that where, however, there was no past transaction of actual deposit of title deeds before the execution of the letter relied on, and the letter is the only evidence of the mortgage and the only document by which the mortgage was created, the letter has to be registered and if it is not registered, it cannot be admitted in evidence to prove a valid equitable mortgage by deposit of title deeds. The crucial fact to be noted in the view taken by the Division Bench, therefore, is that if the document in question was the only document by which a mortgage was created, it will require registration. Once again, whether a particular document by itself creates a mortgage or not has to be decided on the term of the document itself.
24. On a careful scrutiny of the document and in the light of the authorities referred to above, there does not appear to be any infirmity in the view taken by the learned Judge, when he held that the, memorandum in question does not require registration. In the view which I have taken, it is not necessary for me to deal with the contentions raised at the threshold by the learned counsel for the plaintiff that the present is not the appropriate occasion to exercise provisional jurisdiction on the facts of the present case.
25. In the view which I have taken, the revision petition is dismissed. Defendant to pay the costs of the plaintiff - costs Rs. 250/-.
26. Petition dismissed.