1. Ext.P5 order, directing stamp duty to be paid under Article 48(b) of the Kerala Stamp Act, 1959 (‘Stamp Act’ for short), is impugned herein.

2. The brief facts to be noticed are that the petitioner mortgaged certain properties with the additional respondent Bank; a mortgage by deposit of title deeds. The Branch insisted upon and hence a memorandum of deposit of title deeds was executed as per Ext.P1 and registered. When Ext.P1 document was registered, the stamp duty was levied under Article 6(2) (iii) of the Stamp Act. An amount of Rs. 10,000/- was paid as stamp duty and Rs. 3,000/- as registration fee. The petitioner, on satisfying the loan, was issued with a release of memorandum of deposit of title deeds, as seen at Ext.P3.

3. Before presenting the document for execution, for the purpose of adjudicating on the stamp duty, the petitioner approached the District Registrar under Section 31 of the Stamp Act. An order was passed at Ext.P5 finding the stamp required to be as per Article 48(b) of the Act; akin to a conveyance. The learned Government Pleader seeks to sustain the order on the contention that the release deed so presented, renounces a claim upon a specified property and in such cases, ad valorem duty as a conveyance; in proportion to the value of the property has to be paid. The learned Government Pleader also has a contention that, if at all, a different view is taken, the stamp has to be levied under Article 47 of the Act, which would require payment of registration fees at 2% of the value of the property.

4. The memorandum of deposit of title deeds was registered under Article 6(2)(iii) of the Stamp Act affixing stamp of Rs. 10,000/- and paying registration fee of Rs. 3,000/-. The impugned order now directs payment of stamp duty as conveyance, fixing the stamp value based on the value of the property itself. This is definitely an anomalous situation where the release of title deeds would have to be registered with stamp duty far in excess of the duty levied on the memorandum evidencing the deposit of title deeds. The stamp duty levied at the time of registration was not one treating the document as creating any right over the property; much less a mortgage, in which event it would have been stamped under Article 37 of the Stamp Act. When canceling that document it is not discernible as to how there is a release of rights or a re-conveyance.

5. A mortgage, as defined under Section 58 of the Transfer of Property Act, 1882 (‘TP Act’ for short), is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, existing or in future or the performance of an engagement which may give rise to a pecuniary liability. Section 58(f) of the TP Act permits, in any of the notified towns, a mortgage to be created by deposit of title deeds, if the debtor delivers to the creditor or his agent, documents of title to immovable property, with intent to create security thereon. Undoubtedly, where terms of a contract have been reduced to writing, no other evidence of the contract can be given than the written document itself. However, this rule would not apply when the document does not intend to express the whole agreement between the parties, especially when the law does not mandate that the transaction should be reduced to writing.

6. Section 58(f) of the TP Act specifically permits a mortgage even without a written document, that too sans registration, as seen from the proviso to Section 48 of the Registration Act, 1908 (‘Registration Act’ for short). By Section 48 all non-testamentary documents duly registered under the Act, relating to any property movable or immovable, takes effect against any oral agreement or declaration relating to such property, unless the agreement or declaration was accompanied by delivery of possession, which constitutes a valid transfer under any law for the time being in force. The proviso to Section 48 read