Back
ISMAIL, PALANISWAMY
Angu Pillai – Appellant
Versus
M. S. M. Kasiviswanathan Chettiar – Respondent
Key Points: - The deposit of documents relating to or in respect of the property with intent to create security can create a valid equitable mortgage under Section 58 TP Act (!) (!) . - For an equitable mortgage under Section 58 three essentials are needed: a debt, deposit of title deeds, and intention to secure the debt; the documents deposited need not be complete title deeds but must relate to the property and show prima facie title (!) (!) . - Ex. A-22 (an unregistered agreement) can create a right to obtain a mortgage with priority over a decree-holder’s attachment, if it reliably evidences the intention to mortgage and related financial settlements; but the court also notes the need to assess whether such agreement, by itself, creates an interest or merely a security right (!) (!) (!) (!) . - The court held that the documents deposited (Exs. A.23 to A.26) were documents of title within Section 58 and that a valid equitable mortgage was created in favor of the plaintiff (O.S. 55 of 1961) (!) (!) . - The decision discusses prior authorities on documents of title, patta, and the sufficiency of deposit to create priority against other claims, including Rangoon and Indian authorities (!) (!) (!) (!) . - The trial court’s finding that deposit of documents was not documents of title was reversed; the High Court found them to be documents of title and sufficient to create an equitable mortgage (!) (!) .
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 t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
