KAKARAPATHY BBAVANARAYANA Vs. OFFICIAL RECEIVER KRISHNA

JUDGEMENT

(1.) This appeal arises out of a suit brought by the appellant against the respondents to enforce an equitable mortgage alleged to have been created by one late Sonti Venkataratnam, the father of respondents 2 to 5. The short point for determination in the appeal is whether Ex. A, 7 styled as a letter signed and delivered by Sonti Venkataratnam on 7-11-1951 and relied upon by the appellant as evidence in the creation of the mortgage was compulsorily registrable under Section 17 of the Indian Registration Act and not having been registered was inadmissible in evidence to prove the mortgage. The learned Subordinate Judge who tried the suit held that the document required registration and was therefore inadmissible in evidence and accordingly dismissed the suit, Aggrieved by the decision of the lower court the plaintiff has preferred this appeal.

(2.) On the pleas taken by the defendants the lower court also framed some more issues and gave findings and the correctness of those findings is not now questioned before us. In order to properly appreciate the question involved a few facts may be stated ; Late Sonti Venkataratnam used to borrow moneys from the plaintiff and was executing promissory notes from time to time. In the first instance he borrowed a sum of Rs.l0.000/- in the year 1948 and executed Ex A. 1 promissory note. Later he borrowed some more amount in the year 1949 and executed the pro. missory note Ex. A. 2. In renewal of these two promissory notes a fresh promissory note was executed in the year 1950 as per Ex. A. 3. In renewal of Kxi A. 3 he executed a fresh promissory note on 4th May. 1951 (Ex. A, 4 for Rs 13.500)/. On 13th August, 1951 he borrowed a further sum of Rs.1800/ and executed Ex. A. 5 promissory note. These latter two promissory notes were executed not only by Sonti Venkataratnarn but also by oue Tumu Subba Rao. According to the case of the plaintiff when Sonti Venkataratnam was pressed for repayment of the debt due under Exs A4 and A5 he deposited Ex. A, 6 title deed as security for payment of the debt and also executed Ex. A, 7 letter evidencing the deposit. It is convenient to extract here Ex. A. 7 because the entire question depends upon its proper construction having regard to the surrounding circumstances. It is as follows :-

(3.) In the decision Sundarachariar & others Vs. Narayan Ayyar and others(2) a person at Madras gave a promissory note and on the date gave a memorandum which contained a list of the title deeds with the introductory words "as agreed upou in person, I have delivered to you the undermentioned documents as Security", It was held by the Privy Council that the memorandum was not other than a written record oi the particulars of the deeds which were the subject of the deposit and did not embody the terms of the agreement between the parties and did not require registration. In the decision Rachpal Mahraj Vs. Bhagwandas Darnka and others(3) the memorandum was in the form of a letter and is in the following terms :-