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-testamentary instruments which purport or "operate to create, declare, assign, limit or extinguish, whether "in present or in future, any right, title, or interest, whether "vested or contingent of the value of one hundred rupees and "upwards, to or in immovable property ; . . . . "

By s. 49 "No document required by s. 17 (or by any "provision of the Transfer of Property Act, 1882) to be "registered shall—(a) affect any immovable property comprised therein.....(c) be received as evidence of any transaction affecting such property or conferring such power, unless "it has been registered....."

By the proviso to s. 59 of the Transfer of Property Act, 1882 " Nothing in this section shall be deemed to render "invalid mortgages made in the towns of Calcutta .... by "delivery to a creditor or his agent of documents of title to "immovable property with intent to create a security "thereon."

The facts and the terms of the memorandum of agreement appear from the judgment of the Judicial Committee.

The trial judge (Lort-Williams J.) was of opinion that the memorandum was nothing but " a record of what had been "agreed to orally," and was not " a document containing the "bargain made between the parties,” and did not require te bo registered.

On appeal the Appellate Court (Costello and Panckridge JJ.) held that the memorandum of agreement was of such a character as called for registration. The appeal is reported at I. L. R. [ 1937] 2 C. 586.

1939. March 13, 14. A. M. Dunne K.C. and J. M. Pringle for the appellants. The question turns on the terms of a document which was executed after a mortgage by deposit of title-deeds had been made by the appellants. It has been held that because this memorandum subsequently executed was not registered the appellants cannot get the benefit of their mortgage. The point is whether the document which has been held not to be admissible in evidence because it was not registered was one which effected a mortgage, or whether it was a mere record of the previous mortgage by deposit of title-deeds. It is submitted that the real effective meaning of the transactions in question was, first, that there was a deposit of title-deeds to secure loans which the appellants made in praesenti and in future, and that that is covered as an effective mortgage under s. 59 of the Transfer of Property Act, No. IV. of 1882, as it stood at the time of the execution of the memorandum of August 2, 1924. Sect. 59 provided that "Nothing in this section shall be deemed to render invalid "mortgages made in the towns of Calcutta .... by delivery "to a creditor or his agent of documents of title to immovable " property with intent to create a. security thereon." Secondly, the memorandum which was afterwards drawn up really dealt only with the matter of the method of