The judgment establishes the importance of fulfilling the essential elements of a mortgage under Section 59 of the Transfer of Property Act, particularly emphasizing the requirement of delivery of title deeds with the intent to create a security interest.

JUDGMENT

Mukerji, J. - The plaintiff's claim in the present case which has succeeded in the Court below is based upon a mortgage, the validity of which is disputed by defendant 2, the appellant in this appeal. The acts of the case are the following : Premises No. 11, Cockler's Lane belonged to the Mitras, who sold it to one Tarala Debi for Rs. 65,000 on 23rd March 1920. The plaintiff's case is that in order to make this purchase Tarala Debi borrowed the entire amount from him on the same day upon executing a promissory note and effecting a mortgage by deposit of title-deeds of the said property and of certain other properties as well. He obtained a decree on this mortgage and in execution of that decre9 purchased the said premises and also one of the other properties mortgaged, on 14th February 1924. The sale was confirmed on 18th March 1924 and he took delivery of possession on 17th June 1924. His case is that he could not get actual possession of the disputed land which forms a part of the said premises because defendant 1 Murala Debi who held the adjoining premises, had, under a conveyance from the said Tarala Debi dated 4th October 1920, encroached upon the same and then executed a mortgage in respect of it in favour of defendant 2. He challenged the validity of the conveyance by Tarala Debi in favour of defendant 1 and pleaded that in any case both the defendants are bound by his mortgage the suit on which he had instituted before the conveyance had been executed. The defendants, in the written statements they filed, challenged the validity of the plaintiff's mortgage and impugned the decree and the sale held under it as fraudulent. They also maintained that their own conveyance and mortgage were bona fide and valid transactions. The Subordinate Judge has made the usual decree nisi for redemption, declaring that in the event of the defendants not redeeming the plaintiff's mortgage their right to redeem shall be extinguished and the plaintiff should get khas possession on declaration of his title. In the plaint, so far as the mortgage is concerned, all that was said was that:

Tarala Debi had borrowed a sum of Rs. 65,000 from the plaintiff on 23rd March 1920 on a promissory note and deposited with him in the Presidency Town of Calcutta the title deeds of the said property (meaning Premises No. 11 Cockler's Lane) and Promises Nos. 3 and 4, Kayatola Lane by way of equitable mortgage (Para 2).

2. In the written statement of defendant 2 the following averments were made:

This defendant further states that the memorandum and promissory note if any, was made and executed at Bhowanipur at the residence of Tarala Debi and as such no legal and valid equitable mortgage was created thereby. This defendant further states that the conveyance in favour of Tarala Debi being executed on 23rd March 1920 it could not be made over to the plaintiff at the same time and date (Para. 4). That this defendant has been informed and he believes that at the time of the purchase of the premises .... Mr. A. C. Bose, Solicitor, acted on behalf of the aforesaid Tarala Debi and the title deeds with regard to the said premises were in his custody as such Solicitor. The said Mr. A. C. Bose was also acting as Attorney for the plaintiff and by memorandum dated 23rd March 1920 and made and signed at the residence of the aforesaid Tarala Debi at Bhowanipur it was agreed as between the plaintiff and the said Tarala Debi that the title deeds relating to the premises mentioned above would remain with Mr. A. C. Bose who, as stated above, was acting as attorney for both (Para 5).

3. (His Lordship then discussed evidence and concluded that the positive case as regards delivery of title in Calcutta pub forward on behalf of the plaintiff was not proved and proceeded). But on plaintiff's behalf reliance has been placed upon a legal position which, it is said, arose and the effect of which, it is contended was to establish that there was a delivery of title deeds to the plai