The main legal point established in the judgment is the interpretation and application of the legal provisions related to equitable mortgage under the Indian Contract Act, 1872 and the Transfer of Property Act, 1882, and the significance of registration in determining the validity of an equitable mortgage.

1. The plaintiffs are the appellants before us. They are a firm of Mahomedan merchants known as H. M. A. N. Kirmany and Sons consisting of the father and his two sons. The defendants are the legal representatives of one Abbas Khazviny Sahib, who is now dead. Defendant 1 is his eldest son, defendant 2 is his widow and defendants 3 to 5 are his children by defendant 2. The suit was brought to recover a sum of money due on a promissory note, which bears date 1st January 1920, for Rs. 3,166-12-9 and sums due on account of the further dealings up to the death of Abbas, which happened about the end of March 1920. The plaintiffs also allege an equitable mortgage by deposit of defendants title-deeds and ask for a decree for sale. The Subordinate Judge gave a decree for the amount sued for; but he held that there was no valid equitable mortgage and gave a mere money decree to be recovered from the estate of Abbas in the hands of the defendants.

2. The suit was filed on 21st July 1920. Defendants 1 and 2 did not appear. Defendants 3, 4 and 5 who were minors were represented by a Court guardian who filed a written statement putting the plaintiff to proof of his allegations. Defendant 6 was a Marwadi Sowcar who obtained a mortgage of the properties of Abbas under Ex. 2 dated 31st July 1920.

3. Though the document purported to be for Rs. 50,000 it is now admitted before us that the sum due to him at the time of the mortgage was Rs. 24,000 odd. He filed a written statement in November 1920, in which he denied the plaint allegations that title-deeds were deposited on 17th September 1917. He also raised other pleas about the validity and priority of the mortgage. The suit came or for trial on 13th February 1922, and we find it was adjourned on six different occasions on petitions. On :13th February P.W. 1 was examined in part and Exs. A to F. 2 were filed. The case was then adjourned to the next day. On the 14th it was adjourned "at the defendants request, " the defendant being: presumably defendant 6. On 15th February a petition was filed by defendant 1 praying for setting aside the order directing the suit to proceed without him and for permission to file a written statement. This was supported by an affidavit in which it was stated that up to then he did not contest the suit on account of the advice of the plaintiffs but two days prior to the affidavit he found certain account books in a lumber room along with furniture, which shows that the mortgage could not be true. The suit was thereupon adjourned to 14th March 1922.

4. On 1st March 1922 defendant 1 filed a written statement, in which he alleged that the suit promissory note was not executed at Madras but at Bezwada and that it was sent to the plaintiffs firm by registered post, that there was no deposit of title-deeds, and that the title-deeds were obtained by the plaintiff by collusion with defendant

2. He also denied the deposit of title-deeds on 17th September 1917. The reasons given in the affidavit of defendent 1 are so flimsy that an ex-parte decree would never be set aside on such allegations. But in the present case, as the trial was going on the lower Court was probably not wrong in allowing him to file his written statement, provided the allegations which were sought to be proved by him were scrutinized with great care and caution. At the trial the plaintiff examined only one witness, the second son in the firm. It is true that in some respects his evidence is not quite satisfactory, for instance his proof of Exs. A and B promissory notes dated 14th and 17th September 1917 respectively.

5. But A and B are now proved by defendant 1 who is examined as the witness 6 for the defendants. The suit promissory note Ex. E is proved both by P.W. 1, and defendant 1. Defendant 1 denied that Ex. C (a letter depositing the deeds) was executed by his father; but on a comparison of the signatures of A and B and E with that of C we have no doubt that Ex. C was also executed toy the late A