V VENKATARAMAYYA PANTULU Vs. VBNARASINGA ROW

JUDGEMENT

(1.) THE plaintiff institutes the suit on what he calls a mortgage by deposit of title-deeds. THE 1 defendant is the mortgagor. THE only document which is deposited with the plaintiff is a sale-deed in the name of the first defendant's father, dated the 10 of May 1879. Subsequent to the sale the father executes a deed of gift, Exhibit XV, in favour of his grandsons of a deceased son. Disputes having arisen amongst the members of the family, there is a reference to arbitration and an award dated the 10 November 1896. This award is filed in court under Section 525 of the Civil Procedure Code and a decree, Exhibit I, passed in terms of the award whereby the grandsons are directed to deliver the properties, which are the subject of the present so-called mortgage by deposit of title-deeds, to the 1 defendant. His claim of title to the property is not impeached; it is not denied that the property purchased by Anantaya in 1879 was his self-acquisition. THE plaintiff does not say that the 1 defendant has acquired the property by descent from Anantaya on his death. THE decree, the award before it and Exhibit XV, the deed of gift, are none of them deposited. We cannot hold that the mere deposit of the sale deed in the father's name is a good deposit of title-deeds of the properties by the first defendant so as to create a valid mortgage in favour of the plaintiff. Mr. T. Ethiraja Mudaliar, who appears for plaintiff-appellant before us, relies on paragraph 28 of FISHER on Mortgage. We do not think that the paragraph in question is any authority for the position that where the only document that is deposited shows no kind of title in the depositor to the property and there are documents in existence showing his title to the property which are not deposited, an equitable mortgage is validly created by the deposit of the document which shows no title in him. We must, therefore, dismiss the appeal with costs.

(2.) AS the court-fee has not been paid on the memorandum of objections, we dismiss it with costs.