Judgment

Patanjali Sastri J. - This appeal arises out of a suit brought by the respondents against the appellant and other members of his joint family to enforce a mortgage alleged to have been created by the appellant by deposit of his joint family to enforce a mortgage alleged to have been created by the appellant by deposit of title deeds on 23rd October 1936 at Calcutta.

2. The short point for determination in the appeal is whether the memorandum signed and delivered by the appellant on 23rd October 1936 and relied upon by the respondents as evidencing the creation of the mortgage was compulsorily registrable under S.17, Registration Act, 1908, and, not having been registered, was inadmissible in evidence to prove the mortgage. The Subordinate Judge of Darbhanga who tried the suit, and the High Court at Patna on appeal, held that the document did not require registration and was admissible in evidence, and accordingly decreed the suit.

3. The question turns on the proper construction of the memorandum and the circumstances under which it was delivered to the respondents. According to the evidence of the respondents witnesses which has been accepted by the Courts below, the accounts relating to the appellant s dealings were examined on 23rd October 1936 and a large sum was found due to the respondents who demanded payment. The appellant thereupon brought and gave certain documents, being title deeds relating to immovable properties belonging to his family, for the purpose of being held as security for the amounts then due and to become due on further dealings. A draft of the memorandum was thereafter prepared which the appellant took with him to be shown to his lawyer and he returned in the afternoon, and signed and delivered it to the respondents. All this took place in Calcutta. The memorandum is in the form of a letter addressed to the respondents firm and is in the following terms : "We write to put on record that to secure the repayment of the money already due to you from us on account of the business transactions between yourselves and ourselves and the money that may hereafter become due on account of such transactions we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7, Sambhu Mullick Lane, relating to our properties at Samastipur with intent to create in equitable mortgage on the said properties to secure all moneys including interest that may be found due and payable by us to you on account of the said transactions . . . . ."

4. A mortgage by deposit of title deeds is a form of mortgage recognised by S. 58 (f), T. P. Act, which provides that it may be effected in certain towns (including Calcutta) by a person "delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon." 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 forms 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, 1903, as a 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 no