Judgement

Appeal (No. 203 of 1919) from a judgment and two decrees of the Chief Court in its appellate jurisdiction (January 24, 1916) reversing a decree of Young J. (August 25, 1914).

The suit was brought in the Chief Court of Lower Burma by Mallady Sathalingum, since deceased, and represented by the appellants, his executors, against the respondents, of whom Nos. 1 to 8 had been members of two dissolved firms of Chettys, No. 9 was the receiver appointed in the dissolution proceedings, and No. 10 was one Ebrahim Seedat. The claim was to enforce a mortgage dated August 26, 1910, against the respondents; a claim upon the personal remedy was abandoned.

The facts of the case appear from the judgment of the Judicial Committee.

The trial judge (Young J.) held that the receiver had no power to create the mortgage, without the sanction of the Court, save so far as it related to properties included in a prior equitable mortgage. He made a decree accordingly.

Upon cross-appeals to the appellate jurisdiction the suit was dismissed. The learned judges held that the receiver had no power to mortgage; they therefore did not find it necessary to consider whether the prior equitable mortgage was invalid for want of registration.

1922. Oct. 31; Nov. 2, 6. Powell K.C, Preedy and Dube for the appellants. If the mortgage of 1910 was invalid, the plaintiffs can still rely upon the equitable mortgage of 1908. The equitable mortgagee was throughout entitled to call for a legal mortgage Carter v. Wake. (( 1877) 4 Ch. D. 606.) Equity will not presume an intention to abandon that right upon the new mortgage being given Locking v. Parker (( 1872) L. R. 8 Ch. 30, 38.); Kehoe v. Hall (( 1843) 5 Ir. Eq. 597.); Fisher on Mortgages, 6th ed., §§ 1559, 1560. That principle has been applied in India Gokuldoss Gopaldoss v. Rambux Sheochand (( 1884) L. R. 111. A. 126.); Arumugam Pillai v. Periasami (( 1896) I. L. R. 19 M. 160.); Ghose on Mortgages, p. 550. The transaction was completed by the deposit; there was no necessity to register. It is further submitted that the receiver had authority from Seedat to deposit the deeds, apart from his powers under the order appointing him.

Dunne K.C. and Kenworthy Brown for the respondent. It is clear that the receiver had no power to create the mortgage of 1910. The mortgage of 1910 cannot be proved in the absence of registration. The document drawn up embodied the terms of the agreement between the parties, consequently no oral evidence was admissible under s. 91 of the Evidence Act, and registration was necessary under s. 17 of the Registration Act Kedarnath Dutt v. Shamloll Khettry (( 1873) 11 Ben. L. R. (O. C, J.) 405.); Dwarkanath v. Sarat Kumari (( 1871) 7 Ben. L.R.(O.C.J.) 55.) ; Esther Isac v. Martu Mall (( 1916) 25 Cal. L. J. 160.); Bhoibrab Chandra v. Anath Nath. (( 1920) 31 Cal. L. J. 375.) Further, the memorandum required stamping under the Indian Stamp Act (II. of 1899) amended by Act XV. of 1904, s. 8, Sch. I. (6.). [Reference was also made to Pranjivandas Mehta v. Chan Ma Phee (L. R. 43 I. A. 122.) and Credland v. Potter. (( 1874) L. R. 10 Ch. 8.)]

Powell K.C. in reply. The charge in 1908 was created by the deposit, not by the document.

Dec. 20. The judgment of their Lordships was delivered by

LORD CARSON. On July 15, 1908, the firms of Chettys owed to the original plaintiff, Mallady Sathalingum, whose executors the present appellants are, a considerable sum of money, and as security for the same deposited with him by way of equitable mortgage title deeds relating to certain properties of the defendant Seedat, which deeds had been deposited with the said firm by the said Seedat. On the occasion of the deposit a memorandum was signed and delivered to the said plaintiff in the following terms—

"From M. L. R. M. A. Soliappa Chetty and A. L. A. S. R. M. Chetty, Rangoon. To Mallady Sathalingum, Rangoon.

Dated Rangoon, July 15, 1908. "Dear Sir,

"We hand you herewith title deeds relating to fifth class Lot, Nos. 78