The main legal point established in the judgment is that the deposit of a duplicate partition deed can be accepted for creating an equitable mortgage, even if the original is not lost, as long as it is done bona fide by one of the executants to whom only a duplicate was given as a title deed.

Ramakrishnan, J.

State Bank of Travancore, the sole plaintiff in O.S.No. 88 of 1982, Sub Court, Kottayam is the appellant in this appeal. Defendants 5 and 6 arc respondents 1 and 2 in the appeal and they alone arc contesting the appeal. Firs! defendant is the third respondent in the appeal. The other respondents arc defendants 2, 4 and the legal representatives of the third defendant who died pending appeal.

2. The main question to be considered in the appeal is whether the lirst defendant has created a valid equitable mortgage in favour of the Bank by depositing Ext. A6. duplicate of the partition-deed dated 30-10-1971 whereby she was allotted the plaint schedule 5 items of immovable properties in 'C' schedule attached to it?

3. Brief facts necessary for deciding the above question are thus: First defendant had availed a loan from the Bank in 1976. According to the plaintiff-Bank on 28 -4-1976 as a collateral security, the first defendant deposited Ext. A6 document as title deed of her properties scheduled to the plaint. She also executed Ext. A5 memorandum of deposit of title deed dated 29-4-1976. Ext. A6 is a duplicate of the partition deed entered into between the tarts defendant who was the third executor therein and her three sisters of whom two were ciders to her. Admittedly, it was as per the said partition deed the first defendant has got the plaint schedule properties as her own. Ext. A6 is in a stamp paper worth Rs.5/-. It was signed by all the 4 executants and was also registered along with the original on the same day on which the original was registered. It is also relevant to note that there is a significant recital in the document that three duplicates of the partition deed have been prepared and registered simultaneously. After depositing Ext. A6 with the Bank, the first defendant executed Ext. B2 sale deed in respect of a portion of item No.1 properly in the plain! schedule measuring 10 cents in extent in favour of defendants' 5 and 6 who alone resisted the suit raising the contention that the equitable mortgage alleged to have been created in favour of the Bank by deposit of Ext. A6 document is invalid to the extent of the properly covered by Ext. B2 and no decree can be passed against Ext. B2 property. It was contended that Ext. A6 duplicate of the partition deed can only be treated as a copy of the original partition deed. An equitable mortgage can be validly created only by depositing the original deed creating title and not by a duplicate which can at best be treated only as a document evidencing title. As such no decree can be passed against them personally or against the properly covered by Ext. B2. The learned judge has accepted the above contention raised by defendants 5 and 6 and has held that the equitable mortgage created by the first defendant is invalid to the extent of the property covered by Exts. B2 sale deed. It is against the decree so passed by the Sub Court that the appellant: has preferred this appeal. Originally defendants 1 and 2 alone were made parties to the suit. In the suit though defendants 1 and 2 have appeared through a counsel, they have not seriously contested the suit. Defendants 3 to 7 were impleaded later.

4. On behalf of the Bank only P.W. 1, the Manager of the Pappanamcode Branch of the plaintiff-bank was examined. On the side of defendants 5 and 6, D.Ws.1 to 7 were examined.

5. The learned Sub Judge has found on the basis of the detailed oral evidence that defendants 5 and 6 have purchased the property after duly verifying the original of the partition deed and paying valuable consideration. That I i tiding has not been challenged in the appeal. We find that the said finding is fully justifiable in the light of, the evidence available on record and justifiably relied on by the learned Sub Judge. The only question to be considered as already indicated is whether the finding that the equitable mortgage admittedly created by the first defendant by depositing Ext. A6