KRISHNA IYER Vs. CHANDY

JUDGEMENT

(1.) THE suit which gave rise to this appeal is for recovery of Rs. 3500/- that the 1st defendant owes to the plaintiff, with interest and costs, charged on plaint items Nos. 2 to 5. On March 25,1952 the 1st defendant offered to secure his debt on landed property, and on April 5,1952 he brought and delivered to plaintiff Ext. P-2, a deed of Otti, dated march 26, 1952 & registered on April 4, 1952, possessorily mortgaging plaint item No. 1 for the amount with a conditional security on plaint items nos. 2 to 5 in case of loss of the mortgaged property on account of any prior encumbrance thereon. THE appellant was impleaded as the 2nd defendant stated to be a subsequent mortgagee of plaint items 2 to 5. He contended that Ext. P-2 was executed only after execution of Ext. D2 mortgage in favour of his father on March 31, 1952 , and was antedated March 26, 1952 , and that he was entitled to priority over the plaintiff. THE court below found priority for the plaintiff, and in this appeal the appellant challenges the same.

(2.) THE case in the plaint, inter alia, is that Ext. P-2 which had been delivered to the plaintiff by the 1st defendant on April 5,1952 was from beginning to end fraudulent and mischievous having been drawn contrary to the understanding between the 1st defendant and the plaintiff and is therefore to be set aside. On the above pleading, counsel for the appellant contended that the charge under Ext. P-2 on the plaint items 2 to 5 could have arisen only after April 5, 1952 , and that therefore the appellant has priority of mortgage as per Ext. D2 which came into effect on March 31, 1952.

(3.) ASSUMING that the presumption does apply in the present case, counsel points out that the plaintiff's own pleadings show that execution of Ext. P2 could not have been before April 5,1952. 'execution' of conveyance, whether it be a mortgage or a charge on landed property, does not mean the mere signing of the relative instrument. The acceptance of the transaction is essential to make it effective in law. Such acceptance need not be express and may well be implied from attendant circumstances. Thus, if the instrument is executed in accordance with a prior agreement between the parties thereto, such agreement may be held to be anticipatory acceptance of the transaction by the party concerned. Likewise, if an instrument after signing is delivered to the other party and he does nothing to repudiate it, he may be found to have accepted the same. It is in this sense that the delivery of a deed is regarded as an essential part of its execution. Without the concurrence of the plaintiff a mortgage or a charge cannot be created in his favour by another. For a conveyance or a mortgage or a charge to take effect, the interest created must necessarily vest in the transferee or the chargee, and that can never be without his consent or concurrence thereto.