The deposit of documents relating to or in respect of the property, with the intention to create security, is sufficient to create a valid equitable mortgage under Section 58 of the Transfer of Property Act.

PALANISWAMY, J. :- These two appeals arise out of two suits disposed of by a common judgement by the Subordinate Judge of Sivaganga. In both the suits (O. S. 54 of 1961 and O. S. 55 of 1961) the plaintiff was the same. The plaintiff Kasiviswanathan Chettiar is the son of one Samasundaram Chettiar. Angu Pillai alias Kalyani Achi the sole defendant in O. S. 54 of 1961, had obtained a money decree in O. S. 1 of 1959 on the file of the Subordinate Judge, Sivaganga, against Subramania Chettiar, and attached certain properties in execution of that decree. The plaintiff intervened with a claim under Section 47 C.P.C. contending inter alia that the money of his mother Kuppachi alias Visalakshi had been deposited with the joint family, which was having money lending business in Malaya, Burma and Madurai, and that on the death of his mother, he as the sole heir, become entitled to the said amount, that the amount was calculated and settled at Rupees 40,000 that his father had executed an agreement on 28-10-1955 (Ex. A. 22) agreeing to mortgage the properties against which attachment was sough for and that, therefore, the decree-holder in O. S. 1 of 1959 should be directed to bring the property for sale subject to the said agreement.

2. Vallimmal Achi, the first defendant in O. S. 55 of 1961, who died during the pendency of the suit, is the mother of Angu Pillai alias Kalyani Achi, the sole defendant in O. S. 54 of 1961. She had obtained a decree in O. S. 21 of 1958 on the file of the Subordinate Judge, Sivaganga, against Somasundaram Chettiar, father of the plaintiff. In execution of that decree, she attached same properties and brought them for sale. The plaintiff intervened with a claim contending that in respect of the aforesaid sum of Rupees 40,000 due to him, his father had created an equitable mortgage over the attached properties in his favour by depositing title deeds and that the decree-holder should bring the properties to sale only subject to the equitable mortgage.

3. In both the suits, the defences were that the alleged deposit of Sridhana amount was not true, that the alleged agreement dated 28-10-1955 to execute a mortgage in favour of the plaintiff was neither true nor valid and that likewise, the equitable mortgage was also neither true nor valid.

4. After an elaborate trial, the trial Court upheld the case of the plaintiff with regard to the Sridhana amount of his mother and held that for discharging the amount of Rupees 40,000 found to be due to the plaintiff, the plaintiff's father had executed the agreement Ex. A. 2 to mortgage and that the properties could be brought to sale by the decree-holder in O.S. 1 of 1959 only subject to that right of the plaintiff. As regards the controversy about the equitable mortgage put forward by the plaintiff, the trial Court found that certain documents were in fact entrusted by the plaintiff's father with the plaintiff with intention to create an equitable mortgage. But the lower Court, however, found that the documents were not documents of title, and as such, no valid equitable mortgage was created. In that view, the, claim of the plaintiff was disallowed. Against the decree in O. S. No. 54 of 1961 upholding the plaintiff's claim the defendant in that suit has filed A. S. 130 of 1964. Aggrieved by the dismissal of his suit O. S. 55 of 1961, the plaintiff has filed A. S. 356 of 1965.

5. Mr. Raghaviah, appearing for the appellant in A. S. 130 of 1964, repeated before us the same contentions urged before the lower Court, namely, that the alleged deposit of Sridhana amount of the plaintiff's mother was not true, that the agreement put forward by the plaintiff for executing a mortgage in his favour by his father was not true and that in any event the said agreement could not confer any right upon the plaintiff so as to have precedence over the right of the decreeholder to proceed in execution of the decree in O. S. 1 of 1959. We shall deal with these contentions before dealing wi