Document Fragment View

Matching Fragments

3. Sum secured Rs. 80,000 with interest thereon at 8% p. a. and costs of realisation thereof.
4. Nature of mortgage Equitable mortgage by deposit of title deeds.
5. Subject matter of mortgage. Defendant No. l's house at premises No. 35, Puddapukur Road, Bhowanipore, District 24-Parganas.

The two defendants in the suit were the appellant and one Deb Dutta Films Ltd. Who was not a party to the mortgage. The facts about which there can be no dispute are as follows. A sum of Rupees 80,000/- had been advanced on three hundies to which the defendants were parties on December 17, 1951 repayable within 60 days after date without grace. The hundies were silent as to interest. The money was advanced at the creditor's place in the morning and in the afternoon Deb Dutta Seal, the appellant, went there with the title deeds of the above mentioned property which were examined by Giridharilal Phumra, the original plaintiff (now represented by the respondents). They were approved and two documents Exs. 2 and 3 were drawn up according to the drafts made by the first respondent Ramanlal Phumra, son of Giridharilal Phumra. They were signed by the appellant and the title deeds of the documents were made over to the creditors at the same time. Ex. 3 bore the superscription:

19. In Subramanian v. Lutchtnan 50 Ind App 77 : AIR 1923 PC 50 the relevant portion of the memorandum was as follows:

We hand you herewith title deeds relating to fifth class Lot ... with building thereon belonging to Suleman Ahmad Seedat, also his promissory note for Rs. 63,000 due to us, this please hold as security against advances made to us ....
There was evidence that the document was drafted and typed after the parties had come to an agreement and it was drawn up at the time they came together. Referring to the oral testimony of the plaintiff's agent that the arrangement to deposit the title deeds was made in the presence of the eldest son of E. Soloman who gave evidence to the above effect the Judicial Committee held that the evidence on the subject was conclusive that the memorandum constituted the bargain between the parties.

27. In my opinion the use of the past tense in the memorandum does not conclude the matter. One must consider the evidence relating to the deposit and the surrounding circumstances in which the deposit was made and the memorandum signed. There is nothing in the evidence of Ramanlal Phumra to suggest that the deposit was dissociated from the execution of the letter Ex. 2 in point of fact. As already noticed they were contemporaneous as admitted by Ramanlal Phumra. The letter was given when the title deeds were handed over. The use of the past tense in the opening sentence of the memorandum was either incorrect or untrue. It was untrue if the words "deposited and delivered" were used willfully because a man cannot truthfully say that he "deposited and delivered" document at the moment of time when he was actually delivering or depositing them. More likely the use of the past tense was incorrect but unintentional because according to Ramanlal Phumra he was dictating the draft from a similar draft used in the past. However that may be it is clear that the creditors were not content with merely getting an admission from the appellant that the title deeds of the property had been lawfully deposited by the debtor with them. Exhibit 3 together with the oral testimony that the deposit was made with intent to create a security for the liability of the debtor would have been enough to prove the mortgage. If the creditor merely wanted the fact of deposit to be recorded in writing the letter Ex. 3 would have served his purpose. The execution of the hundies was sufficient to prove the extent of the loan. If the terms of the bargain were not meant to be recorded the execution of Ex. 2 was unmeaning and vain. The real necessity for the execution of Ex. 2 was in my opinion, to fix the appellant with the terms recorded therein. Though brief in words Ex. 2 contains all the terms of a valid mortgage by deposit of title deeds. That the execution of it was attended with some solomnity is evident from the declaration of the debtor that the property was free from all encumbrances and that he was willing to execute a regular mortgage whenever called upon. In my opinion, the document was not created merely to record the character of the deposit but to pin the executant down to the terms set forth therein. That Deb Dutta Seal was a person for whom mere word of mouth had no sanctity is apparent from the written statement filed by him where he denied the plaintiff's claim in its entirety. Ordinarily when a deposit of title deeds is made with intent to create a security for any liability and thereafter a document is executed which records some but not all the terms which the nature of the transaction demands, there is scope for contending that the document is merely evidential and not operative but when the document contains all the terms and is executed contemporaneously with the deposit of title deeds, it and it alone can be considered in evidence and if the law of registration shuts the document out of consideration, unfortunate though the result may be. the law must take, its course regardless of the hardship caused. In Kedarnath Dutt's case (1873) 11 Beng LR 405 the use of the present tense regarding the deposit on the facts of the case was said not to make the document the contract between the parties. Besides one must always remember that the language of a document in English drafted by ordinary commercial people of India is not unoften tainted with faulty grammar and does not have the same precision as in the text of a Bacon or a Chalmers.