Judgement

Appeal (No. 80 of 1937) from a judgment and decree of the High Court in its appellate civil jurisdiction (April 6, 1937), which had reversed a judgment and decree of that Court in its ordinary original civil jurisdiction (May 22, 1936).

The question in this appeal was whether a memorandum of agreement, dated August 2, 1924, and made contemporaneously with the deposit of title deeds on the mortgage of certain immovable property in Calcutta, was a document relating to the mortgage transaction of such a nature as to require registration under the provisions of s. 17, sub-s. 1 (b), of the Indian Registration Act (XVI. of 1908), before being admissible in evidence as provided by s. 49 of that Act. It was contended by the mortgagors that the document should have been registered, and that failure to do so rendered the mortgage unenforceable under s. 49 of the Act.

For the appellants, the mortgagees, it was contended that, under s. 59 of the Transfer of Property Act

(IV. of 1882), an effective mortgage was created by the deposit of the title deeds.

The Indian Registration Act, 1908, provides by s. 17, sub-s. 1 " The following documents shall be registered .... "(b) other non-test