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2. With regard to the factual matrix, it is to be noted that the suit was filed by the appellant/plaintiff for realisation of the amount due from the respondents/defendants contending that  A.F.A. No. 26 OF 1999 the amount was given to the respondents/defendants on the strength of a pronote executed on 17.11.1971 and on further deposit of title deeds with intend to create an equitable mortgage as a measure of additional security.

3. The suit was resisted by the defendants on many a ground. Though the execution of the pronote and the receipt of Rs.15,000/- was admitted therein, it was contended by the respondents/defendants that the suit was barred by limitation; that the amount due to the plaintiff had already been repaid; that the memorandum dated 17.11.1971 as to the deposit of title deeds was never executed with an intend to create equitable mortgage with regard to the above transaction and further that there was no valid creation of an equitable mortgage.

4. During the course of trial, it was brought to light that Ext. A2 memorandum as to the deposit of title deeds was not a registered one and hence it could not be looked into for establishing the transaction. The trial court arrived at a finding that Ext.A1 pronote having been executed as early as  A.F.A. No. 26 OF 1999 17.11.1971, the suit filed in the year 1983 was barred by limitation and no personal decree was possible. The contention of the appellant/plaintiff that Ext. A2 memorandum was only a record in respect of an equitable mortgage created already, ie., in respect of a past transaction, and hence, did not require registration was answered in the negative. Though the plea put forth by the defendants that the amount borrowed had already been repaid was held against them, the suit was dismissed as barred by limitation.

10. The above legal position has been crystallized by virtue of subsequent decision of the Apex Court in Veeramachineni Gangadhara Rao vs. The Andhra Bank Ltd. and others ( AIR 1971 Supreme Court 1613) as well.

11. Smt. N. Sudha, the learned counsel for the appellant vehemently contended that Ext.A2 by itself did not intend to create any equitable mortgage and that it was only the record of a past transaction as to the creation of an equitable mortgage which hence needed no registration. Learned counsel also placed reliance on the decision reported in AIR 1931 Privy Council 36 (Sundarachariar vs. Narayana Ayyar) wherein a letter/document, depositing title deeds, was held as not liable to be registered, being the record of a past transaction. On going through the contents of the said document, as extracted in the  A.F.A. No. 26 OF 1999 above decision and that of Ext.A2 involved in the present case, there is an ocean of difference, in so far as the intention of the parties is concerned. The contents of the memorandum involved in AIR 1931 Privy Council 36 (as extracted therein) are reproduced as given below:

"Written to E.N. A. Samoo Battar by Krishnaswami Ayyar of S..V. Ramasami Ayyar and brothers. As agreed upon in person I have delivered to you the undermentioned documents as security".

12. Obviously, the above letter/memorandum does not show the creation of an equitable mortgage by itself, but for showing the handing over of the title deeds as security as agreed earlier, i.e., in respect of a past transaction. But as regards Ext. A2, the context of execution is clearly discernible from it revealing the necessity felt to create an equitable mortgage by deposit of title deeds as an additional security in respect of the amount obtained under the pronote executed on the same date and that the relevant title deeds bearing Nos. 2363 of 1964, 4094 of 1966 and 1737 and 1738 of 1971 of  A.F.A. No. 26 OF 1999 Eravipuram Sub Registry, (by virtue of which the executants started to enjoy the same with exclusive possession, absolute ownership and with clear and marketable title) were 'thereby deposited' executing the said document by subscribing their signature to the same.