SURENDRA MOHAN RAI CHOUDHURY Vs. MOHENDRA NATH BANERJEE

JUDGEMENT

(1.) (F.A. No. 144 of 1928.) Defendant 10 is the appellant in this appeal, which arises out of a suit instituted by the plaintiff for enforcement of a mortgage against defendants 1 to 7 who are the heirs of the mortgagor one Khetra Prasad Banerjee deceased, and in which defendants 8 to 12 were impleaded as defendants as being subsequent transferees. The plaintiff's case was that on 24 May 1923, Kshetra borrowed Its. 15,000 from him by executing a hand-note in his favour agreeing to pay inter-oat thereon at the rate of 1 per cent per month and that by way of security for the repayment of the said sum together with interest he, at the same time, deposited with the plaintiff the title-deeds relating to some immovable properties. The property concerned in this appeal is one of those properties and is premises No. 76, Barrackpore Trunk Road, The case of defendant 10 was that on 19 March 1924 Kshetra borrowed from defendant 10 a sum of Rs. 20,000 agreeing to pay interest thereon at the rate of 12 per cent per annum and executed a mortgage-deed in his favour on the security of premises Nos. 76 and 76-A, Barrackpore Trunk Road declaring that the said properties were subject only to a mortgage dated 5 December 1916 in favour of Rai Satis Chandra Chowdhury Bahadur and another for Rs. 35,000, carrying interest at the rate of 12 annas 1 pice per cent per month. The Subordinate Judge held that the plaintiff's mortgage should have priority over de-fondant 10's mortgage.

(2.) The first contention urged on behalf of the appellant, defendant 10, is that the memorandum relating to the deposit of title-deeds with the plaintiff not having been registered, the agreement embodied in it cannot be proved. The memorandum is a letter addressed to the plaintiff and signed by Kshetra, to which a list of documents is appended. It runs thus: Dear Sir, This is to place on record that I have borrowed the sum of Rs. 15,000 (fifteen thousand) only from you to-day at an interest of 12 per cent par annum and executed a pro-note in your favour and I have kept the undermentioned documents of title as security for the said debt. I further assure you that the properties of which. the title-deeds are kept herewith are free from encumbrances.

(3.) In the case of Pranjivan Das V/s. Chan Ma Phee A.I.R. 1916 P.C. 115 the Judicial Committee laid down the law as follows: The law upon the subject is beyond any doubt; (1) whore titles are handed over with nothing said except that they are to be security, the law supposes that the scope of the security is scope of the title; (2) where however titles are handed over accompanied by a bargain, that bargain must rule; (3) lastly when the bargain, is a written bargain, it and. it alone must determine what is the scope and extent of security.