Judgement

Appeal (No. 59 of 1930) by special leave from a decree of the High Court at Madras (October 26, 1928) affirming a decree of the Subordinate Judge of Dindigul (November 3, 1923).

The plaintiff, since deceased, and represented by the respondents, brought a suit to enforce by sale a mortgage by deposit of documents of title alleged to have been made at Madras.

The sole question arising upon the appeal was whether or not a memorandum signed by the agent for the mortgagees and handed to the mortgagor was a document which by s. 17 of the Indian Registration Act required registration and was therefore by s. 49 inadmissible in evidence in the absence of registration.

The facts appear from the judgment of the Judicial Committee.

The High Court (Madhavan Nair and Jackson JJ.), affirming the Subordinate Judge, held that the memorandum was not within s. 17 and was admissible in evidence ; the usual mortgage decree was made with liberty to apply under Order xxxiv. for a personal decree if the sum realized was insufficient to discharge the debt.

1930. Dec. 5, 8. Upjohn K.C, and Narasimham for the appellants.

Dunne K.C. and Dube for the respondents.

[Reference was made to Subrarmonian v. .Dutchman (( 1922) L. R. 50. I..A. 77.) ; Kedarnath Dutt v. Shamloll Khettry (( 1873) 11 Ben. L. R. (O. C. J.) 405.) ; Pramjivandas Mehta v. Chan Ma Phee (( 1916) L. R. 431. A. 122.) ; and Shaw v. Foster (( 1872) L. R. 5 H. L. 321.) ; also to Chegamull v. Govindaswami ( 1928 A. I. R. (Mad.) 972.), referred to in the judgment of the High Court.]

Jan. 13. The judgment of their Lordships was delivered by

LORD TOMLIN. The suit out of which this appeal arises was instituted in 1921 in the Court of the Subordinate Judge at Madura by one Samoo Battar, a money-lender doing business in Palghat, Madras, and other places. He claimed in effect to enforce an equitable mortgage by deposit of title-deeds to secure Rs.60,000 and interest and to recover a personal judgment for the amount of the mortgage debt so far as the security should prove insufficient.

The defendants to the suit were the members of a joint family firm trading at Madura. The present appellants, who are assignees of the interest of the joint family firm in the property comprised in the title deeds in question, were brought into the suit as additional defendants.

On November 3, 1923, the Subordinate Judge made the usual mortgage decree for the amount claimed and costs with a direction for sale in default of payment and with liberty for the plaintiff if the proceeds of sale of the property proved insufficient to apply for a supplemental decree against the family properties of the members of the joint family firm and also against the members of the joint family firm personally.

The present appellants appealed to the High Court, and on October 26, 1928, the High Court dismissed the appeal with costs.

The appellants obtained special leave to appeal to His Majesty in Council. The respondents to the appeal are the legal representatives of the plaintiff who is dead.

The question raised by the appeal is whether there is any mortgage capable of legal proof having regard to the fact that there was a written memorandum relating to the matter which was not registered under the Indian Registration Act (XVI. of 1908).

The facts are to be gathered from the documents and the evidence of witnesses called by the plaintiff. No evidence was adduced by the defendants.

The story is in substance as follows —

The joint family firm owed the plaintiff Rs.36,809.0.10, and wanted a further advance so as to make up a total debt of Rs.60,000. Their manager, Krishnaswami Ayyar, entered into negotiations with the plaintiff through the plaintiffs son and eventually came to Madras to deal with the matter. Security was demanded. The deeds of two properties were offered but rejected as inadequate. Then the deeds of three additional properties were offered. The five properties were considered adequate security. The transaction was c