Judgment

SIKRI, J. (on behalf of himself and P. Jaganmohan Reddy, J.) : This appeal by certificate of fitness granted by the High Court under Art. 133 of the Constitution is directed against its judgment and decree modifying the decree passed by the Trial Court. The Trial Court had decreed the suit and granted a preliminary decree against the appellant and another and had declared that the house at No. 35, Paddapukur Road, Bhowanipore, stood charge and/or mortgaged in favour of the plaintiffs ( respondents before us) for the due payment of the sum of Rupees 92182/3/6, and future interest was allowed at the contracted rate. The High Court modified the interest to 6 p.. c. per annum till suit and the same rate till realisation. As the High Court had modified the decree it granted a certificate under Art. 133 of the Constitution.

2. The only point raised by the learned counsel for the appellant is that the document Ex. 2, dated December 17, 1951, required registration and was inadmissible in evidence. The said letter reads as follows:

"Calcutta, the 17th December, 1951

Girdhari Lal Phumra, Esqr.,

56,Burtolla Street,

Calcutta

Dear Sir,

Re: 35, Puddo Pukur Road.

I write to record that I delivered to and deposited with you this day at No. 56, Burtolla Street, Calcutta my title deeds relating to the premises No. 35, Puddopukur 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 (Rupees Eighty thousand only) drawn by me in your favour and I have undertaken to execute a legal mortgage at my costs whenever called upon by you to do so. I further assure you that the said premises No. 35, Puddo Pukur Road, is free from all encumbrances and the same absolutely. belongs to me.

Yours faithfully,

Sd/- Debdutt Seal

(DEBDUTT SEAL)

17-12-1951"

3. The only evidence led as to the circumstances in which this letter was executed is that of P. W. 1, Raman Lal Phurmra s/o late Giridharilal Phumra. The defendant denied the execution of the hundies referred to in the letters. It is necessary to extract the relevant evidence of P. W. 1. He says:

"I know the defendants 1 and 2. On 17-12-51 my father and myself lent Rs. 80,000 to defendant No. 1 for the purpose of his business and then the defendant No. 1 executed 3 Hundis for Rs. 35,000 Rs. 35,000 and Rs. 10,000 respectively on that date. The body of the Hundis was typed. The defendant No. 1 executed all the three Hundis and the defendant No. 2 accepted the same in my presence. The Hundis are marked Exts. 1 and 1B. Consideration for all Hundis was paid in my presence. On the same date, the defendant No. 1 gave his title deeds re: 35 Puddapukur Road after the execution of the Hundis as the security for the money. He gave the title deeds at our Gaddi at 56, Burtolla Street. He gave us this letter at the time of handing over the title deeds. The defendant No. 1 singed the letter of the list of title deeds in my presence. Letter is marked Ext. 2. List of documents is marked Ext. 3."

In cross-examination he stated:

"On 17-12-51 the defendant came to us and requested for a loan of Rs. 80,000 on the ground that it was urgently needed for business .. . My father read and approved of the title deeds and the defendant No. 1 made out the list. We know from long before that 35, Pudda Pukur Road belonged to defendant No. 1 . . .. I drafted the letter (Ex. 2) according to the draft usually made in such cases. The letters and title deeds were given together in the afternoon and the money was paid in the morning of the same day."

4. Both the Trial Court and the High Court have held that this letter did not require registration. It seems to us that on the evidence reproduced above what happened was this. In the morning the money was advanced and the Hundis executed. In the afternoon the defendant brought the title deeds with a view to create an equitable mortgage. He gave the deeds to the father. The title deeds were ap