A sub-mortgage can be validly created by the deposit of the original mortgage deed, and the sub-mortgagee has the right to sue on the original mortgage without a registered assignment, as the sub-mortgage operates as an assignment of the mortgage interest of the mortgagor.

ISMAIL, J.

1. The second defendant in O.S. No. 11 of 1960 on the file of the Court of the Subordinate Judge, Thanjavur is the appellant herein. The appellant is the son of the first defendant, Kandaswami Pillai, and the first defendant is the son of one Neehmegham Pillai. Ex. A.1 d. 30th November 1939 is a registered mortgage deed executed by Neelamegham Pillai and the first defendant, the first defendant for himself and as guardian of the appellant, who was a minor at that time, for Rs. 60,000/- in favour of one Chidambaram Chettiar. In a suit for partition instituted by the sons of Chidambaram Chettiar in O.S. No. 42 of 1950 on the file of the Court of the Subordinate Judge, Pudukottai, the interest of the mortgagee under Ex. A.1 were alloted to the shares of defendants 3 to 7, namely, the widow and sons of Chidambaram Chettiar aforesaid. Chidambaram Chettiar himself died on 18th June 1952. He had borrowed moneys from the plaintiff-Bank and defendants 3 to 7 acknowledged the liability of Chidambaram Chettiar to the Bank and created an equitable mortgage by deposit of title deeds in respect of their mortgage interest under Ex. A.1. In favour of the plaintiff-Bank. For this purpose they deposited the mortgage deed, Ex. A.1 itself with the plaintiff. This deposit took place on 3rd February 1953 at the Head Office of the Bank at Madurai. The plaintiff-Bank wrote a letter d. 3rd February 1953, marked as Ex. A.10, addressed to the fourth defendant, acknowledging the receipt of the document of title. On the next day, that is, on 4th February 1953, a letter was written by all the five persons, namely, defendants 3 to 7, addressed to the Agent of the Bank of Pudukottai referring to the deposit of Ex. A.1 as a title deed, with intent to create a mortgage in respect of the amounts due by Chidambaram Chettiar, subsequently acknowledged by them, to the Bank. That letter is marked as Ex. A.11. It was thereafter the present suit was instituted by the Bank impleading the father of the appellant and the appellant as defendants 1 and 2 and the widow and the sons of Chidambaram Chettiar as defendants 3 to 7 and three other persons who claimed interest in the properties by virtue of subsequent alienations. The prayer in the suit was that the amount due under the mortgage deed referred to in paragraph 3 of the plaint, namely, Ex. A.1 be declared to be Rs. 1,58,900/- as on the date of suit and for payment of Rs. 68,576-84 as detailed in the plaint to the plaintiff for the amount due on the promissory note, d. 11th January 1931 with interest at the contract rate and terms from the date of suit to that of payment together with costs within a time to be fixed by the Court; in default to pass a final decree for sale of the property detailed in the schedule, the decree being in terms of Form No. 11, Appendix D of the C.P.C. The suit was resisted principally by the appellant herein. He put forward several contentions, such as, that Ex. A.1 mortgage was not supported by consideration, that there was a partnership between Chidambaram Chettiar and the first defendant and it was only with reference to that partnership, the promissory note for Rs. 25,000/- was executed by the first defendant in favour of Chidambaram Chettiar; that some property was purchased in the name of Chidambaram Chettiar by the first defendant for Rs. 40,000/- which was subsequently sold by Chidambaram Chettiar for a sum of Rs. 1 lakh; that thereby Chidambaram Chettiar made a profit of Rs. 60,000/- which, in any event, was sufficient to discharge the amount due by the first defendant to Chidambaram Chettiar, that consequently Chidambaram Chettiar himself had no right to claim any amount from the first defendant; and that therefore the mortgage created by defendants 3 to 7 in favour of the plaintiff was not supported by consideration and that no amount was due to the plaintiff. Subsequently, he filed an additional statement raising a new contention. Based upon these pleadings