The intention to create an equitable mortgage is a question of fact to be decided on the materials on record and not a question of law.

( 1 ) THIS appeal is directed against the judgment and decree passed by Shri R. L. Mukherjee, Subordinate Judge, Third Court, Alipore, 24-Parganas in Title Suit No. 130 of 1968 allowing the claim of the plaintiff for enforcing a mortgage debt and for realising the money due thereunder.

( 2 ) THE appeal arises out of the following facts.

( 3 ) THE plaintiff alleged that the defendant borrowed from him a sum of Rupees 10,000/- on the 26th March, 1962 agreeing to pay interest thereof at the rate of Rs. 10/-per cent per annum on the basis of equitable mortgage in respect of the property mentioned in the schedule given in the plaint. It was further alleged that the defendant deposited with the plaintiff on the selfsame date at Bengal Restaurant at 10 Chowringhee Road in the town of Calcutta, title deeds of the defendant's premises No. 40, Kabir Road, Tollygunge within the district of 24-Parganas thereby agreeing to create an equitable mortgage of the said property for securing the aforesaid loan as evidenced by the pro-note dated the 26th March, 1962 executed by the defendant in favour of the plaintiff. Tn this connection the plaintiff also asserted that the defendant deposited the title deeds of the premises No. 40, Kabir Road and other documents relating thereto on the day when the loan was advanced. The defendant also handed over one memo Ext. 4 and another affidavit, Ext. 5 at 10, Chowringhee Road, in the city of Calcutta on the 28th March, 1962. On the above allegations the plaintiff brought the title suit claiming Rs. 16,000/- as his dues to be realised from the defendant and accordingly he made a prayer for preliminary decree against the defendant in terms of Order 34, Rule 4 of the Civil P. C. and for a final decree under Order 34, Rule 5 of the said Code. . Prayer for costs was also made.

( 4 ) THE defendant did not challenge the pro-note and the fact that the plaintiff advanced Rs. 10,000/- to him by way of loan. He, however, contested the claim of the plaintiff that the defendant mortgaged premises No. 40, Kabir Road by depositing the title deeds as alleged by him. He seriously contested the allegations of the plaintiff that the transaction took place on the 26th March, 1962 at 10, Chowringhee Road in the town of Calcutta or that any title deed of the premises in question was ever handed over by him to the plaintiff on the date and place as alleged.

( 5 ) THE learned Subordinate Judge overruled the contention of the defendant and passed a decree as prayed for by the plaintiff. Being aggrieved by the said judgment and decree the defendant has preferred this appeal.

( 6 ) MR. Sen, learned Advocate for the appellant submits that the appellant has no objection for a decree to be passed against him but it should be a money decree and not a mortgage decree. Mr. Sen's contention is that the plaintiffs story that the title deed of premises No. 40, Kabir Road was handed over at Bengal Restaurant in premises No. 10, Chowringhee Road in the city of Calcutta and that the loan was advanced there, cannot be said to have been established on evidence, far less, the plaintiff has been able to establish the intention of the defendant to create an equitable mortgage in respect of the said premises. Mr. Sen has also submitted that in a case like this three requisites are to be established by the plaintiff before he can get a decree for mortgage. They are (1) debt, (2) deposit of title deed and (3) an intention that the deed shall be security for the debt. It has however, not been challenged as to the existence of debts. With regard to two other requisites, namely, deposit of title deeds and the intention as referred to, Mr. Sen contends that on the evidence on record they cannot be said to have been established. Mr. Mitter, learned Advocate appearing for the respondent, however, drew our attention to the evidence on record and it has been contended that the defendant deposited the title deeds with the plaintiff not in his