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11. The learned counsel appearing for the appellant/fourth defendant vehemently contended that the entire documents have been created only for the purpose of defeating the rights of the appellant herein, who is the bona fide purchaser of the property. It is his contention that admittedly, the property was already in mortgage with the State Bank of India. All the original documents were in the custody of the bank. Only in order to discharge the mortgage amount to the bank, the property was sold http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 by the first defendant and the portion of the sale consideration were deposited in the name of the minors and loan has been discharged and all the original documents were handed over to the fourth defendant. The plaintiffs and the first defendant are close relatives. Only in order to defeat the rights of the fourth defendant, the so called equitable mortgage was created with a xerox copy of the title deed when the original document is already in the bank. The documents, affidavits and pronotes were created for the purpose of defeating the rights of the fourth defendant. Ex.A.2 and Ex.A.3-pronotes stated to have been executed by the defendants 1 to 3. Whereas, the defendants 2 and 3 were minors. Similarly, affidavit said to have been executed by the second defendant also clearly indicated that the document has been created with the help of the Advocate Clerk. At the relevant point of time, the second defendant was a minor and to prove the said fact, not only the school certificate but also the birth certificate have been filed. Hence, it is his contention that even assuming that any contract as alleged by the plaintiffs is true, the contract by the second and third defendants, being the minors at the relevant point of time, is void and unenforceable. Therefore, the alleged equitable mortgage said to have been created by the defendants 1 to 3 is a created http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 theory of the plaintiffs in order to grab the property of the bona fide purchaser. Mutation has taken place in the name of the plaintiffs. No pre-legal notice was issued by the plaintiffs and the defendants 1 to 3 conveniently remained exparte before the Courts below. That itself clearly probabilised the theory of collusion. Whereas, the first defendant has issued a pre-legal notice stating that the plaintiffs are making an attempt to create a document even much prior to the suit. Thereafter only, all the documents have been hurriedly created. Hence, it is the contention that the first Appellate Court has not appreciated the documents properly and ignored the Evidence Act, 1872 and the first Appellate Court has, in fact, erred in holding that the xerox copy is valid for creation of equitable mortgage. The first defendant, having issued the legal notice, has to protect the title of the fourth defendant. Whereas, he conveniently remained exparte. The plaintiffs were aware of the equitable mortgage with the State Bank of India. Therefore, they hurriedly created all the documents. It is his contention that the Courts below, being the Courts of facts, have failed to discover the truth in this matter as to the manner in which the documents were created. It is his further contention that if at all pronotes-Ex.A.7 and A.11 are proved, personal decree alone can be passed against http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 the first defendant and not the mortgage decree. Hence, it is submitted that the entire judgment of the first Appellate Court is liable to be set aside.

13. It is the further contention that only the defendants 1 to 3 are competent to question the age of the second defendant. http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 Whereas, the fourth defendant is a stranger to the family. He had no right to question the age of the second defendant. The evidence of P.W.1 to P.W.4 clearly established not only the execution of the pronotes but also equitable mortgage. The accounts filed by the plaintiffs also show that the defendants 1 to 3 are liable to pay the amount. The cheque issued by the first defendant was also dishonoured, in respect of which, criminal prosecution is also launched. The Criminal Court has found the first defendant guilty. All these facts clearly proved the fact that the plaintiffs are entitled to decree and judgment. The Trial Court, on the other hand, has non-suited the plaintiffs only on the ground that xerox copy has been deposited as title deed, which is not valid in the eye of law. The Trial Court, in fact, has clearly held that all the documents have been executed by the defendants 1 to 3. The first Appellate Court has also confirmed the said finding. When the Courts below have concurrently held that the documents were executed legally by the defendants 1 to 3, the Second Appeal has to be dismissed. Hence, it is his further contention that there is no bar in law in creating mortgage with a copy of the document. What was seen is only an intention to create equitable mortgage. The affidavits given by the defendants 1 and 2 and also on behalf of the minor, make it http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 clear that the defendants 1 to 3, in fact, had intended to create equitable mortgage and handed over the copy of the documents and other documents towards security of the money borrowed by them. It is also contended that as there is an act of minor herself signing as a major, there is estoppel against the second defendant. Hence, it is contended that the judgment of the first Appellate Court decreeing the suit does not require any interference.

32. It is further to be noted that in Exs.A.19 and A.20 copies were applied on 09.07.1997 and the evidence of P.W.1, particularly, cross examination, also clearly indicates that ledger amount indicates the payment to the said advocate M.V.Santharaman. This evidence, in fact, clearly gives an inference that the certified copies were obtained by the advocate of the plaintiffs. From the Court records, it can be inferred that he already appeared in the previous partition suit and the entire theory of equitable mortgage has been created subsequently. Therefore, the alleged equitable mortgage projected by the plaintiffs is highly doubtful and it has not been established under law and it creates serious doubt about the entire transaction. It is http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 also to be noted that only xerox copy of the title deed, namely sale deed is filed. It is the contention of the plaintiffs that equitable mortgage can be validly created under law.

35. Absolutely, there is no dispute with regard to those facts. What is sought to be projected in this case is Exs.A.19 and A. 20-final decree proceedings relating to the title of property. But, as already discussed, Exs.A.19 and A.20 were, in fact, obtained by the http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 plaintiffs' own lawyer and not by the defendants. As per the xerox copy of the title deed itself, it is to be noted that it is well settled that when the document is registered document, the xerox copy is not admissible as secondary evidence. So, only certified copy of a registered copy is to be admitted as secondary evidence in the absence of the original deed. This has been held in Kalyan Singh v. Chhoti [AIR 1990 SC 396]. Thus, the xerox copy of the document is inadmissible in law and claiming right on the basis of such xerox copy, is also impermissible in law. Therefore, knowing very well that the property was already mortgaged with the State Bank of India and creating an equitable mortgage with xerox, such equitable mortgage cannot be valid in the eye of law. When the original is already available and certified copies also could be easily obtained, there was no reason as to why such document was not necessitated by the plaintiffs. This is also one of the reasons to doubt the entire transaction. Hence, this Court, on proper appreciation of the entire evidence available on record, is of the view that the so called equitable mortgage is a fabricated one and unenforceable in law and the conduct of the defendants 1 to 3 remaining exparte and taking note of the relationship of the parties, the possibility of collusion between the plaintiffs and the http://www.judis.nic.in  Second Appeal (MD)No.1273 of 2011 defendants 1 to 3 being the same community and the fourth defendant, namely the appellant herein is a third party bona fide purchaser, also cannot be ruled out. Though the evidence adduced on the side of the plaintiffs indicates that the first defendant was also prosecuted for criminal office under Negotiable Instruments Act, to rule out such collusion, but the fact remains that the so called equitable mortgage has not been established and the very nature of the documents is suffered from serious infirmities and there are doubts which are inherent in the very transaction itself. Further, the contract said to have been executed by the minors is also void ab initio.