The main legal point established in the judgment is that the memo of deposit (Ext. A2) required registration as it was executed on the same date as the document was delivered, indicating the intention of creating a separate mortgage. The non-filing of a suit on the basis of the promissory note within the limitation period signified the intention of executing a mortgage under Ext. A2.

S. Marimuthu, J.

This appeal is directed against the judgment and decree delivered by the Additional Sub Judge, Quilon in O.S. No. 286/82. The plaintiff is the appellant and the defendants are the respondents in this appeal. The plaintiff filed the suit for recovery of money on the following grounds: On 17.11.1971 the defendants/respondents received a sum of Rs. 15,000/- from the plaintiff/ appellant agreeing to pay the same on demand with interest at 12% per annum and executed a promissory note. As a further security for the same amount, they executed a memo of deposit of title deed relating to the plaint schedule property. The defendants made the payment of Rs. 900/- only in six instalments. Thereafter no amount was paid. As on 18.2.75 the date of the termination of the chitties between the defendants and the plaintiff, an amount of Rs. 10,250/- was due to the plaintiff for which with interest the suit was filed. The plaintiff never agreed that the loan amount can be repaid by remitting the chitty instalments. The above contentions of the plaintiff were resisted by the defendants on the ground that the suit is barred by limitation. The plaintiff represented that as soon as the 3rd instalment is paid after subscribing 10 numbers of chitties having a value of Rs. 5,000/- each, a loan of Rs. 25,000/- will be paid to the first defendant and the loan amount will be adjusted in the chitty instalments paid. Believing the above representation of the plaintiff, he subscribed 10 numbers of the chitty. But when the loan was demanded after remitting the three instalments, the plaintiff failed to advance the loan. After the chitty instalments were remitted the plaintiff advanced the loan of Rs. 15,000/- only to the first defendant. As additional security for the amount a promissory note was executed. Thereafter, the first defendant remitted the chitty instalments in all the 10 numbers of the chitty after 15 instalments. The defendants settled the transaction by remitting Rs. 15,000/- including' Veethapalisa'. The entire transaction among them was settled. As a security for realisation of the loan amount, in case the chitty instalments are defaulted, the defendants deposited the title deeds relating to their property. The documents were not returned after settling the transaction. It was agreed that the balance loan of Rs. 10,000/- will be advanced soon and the plaintiff also failed to advance that amount. Chitty instalments were not remitted further because the plaintiff concern was closed. The plaintiff is bound to pay interest for the chitty instalments of Rs. 15,000/-deposited by the defendants. Hence the suit is liable to be dismissed.

2. On both the sides, evidence were let in. The trial court in examining the evidence dismissed the suit. The above judgment and decree are being challenged in this appeal. The question that was urged before me for consideration is whether Ext. A2 dated 17.11.71 creates a separate mortgage to secure the loan advanced under Ext. A' promissory note, the same dated. If so, whether A2 requires registration. The learned counsel appearing for the appellant submitted that the appellant was a foreman of a chitty transaction, in which the first defendant/first respondent joined a subscriber in 10 numbers of chitties each valued at Rs. 5,000/-. On payment of three instalments in all the 10 chitties a sum of Rs. 15,000/- was advanced to the respondent for which Ext. A' promissory note was executed on 17.11.71. As an additional security, on the same date of Ext. A', Ext. A2 memorandum was executed by the first respondent/ defendant in favour of the appellant. Thus, Ext. A2 is not creating a mortgage and therefore, it needs no registration. Hence, the dismissal of the suit by the Trial Court on that main ground cannot be sustained and that has to be reversed.

3. As against the above submission of the learned counsel for the appellant, it was the contention of the learned counsel for the respondents that a