CHUNILAL SOMESHVAR BHATT Vs. VITHALDAS KARSANDAS

JUDGEMENT

(1.) The plaintiff sued to recover Rs. 1,000 principal, and Rs. 69-5-0 interest thereon, by sale of the mortgaged house mentioned in the plaint situated at Godhra, or in the alternative for a registered mortgage deed thereof, alleging that he had advanced that sum to the defendant to enable him to carry on trade in Bombay, and in consideration thereof the defendant deposited the title deed of his house at Godhra and created an equitable mortgage thereon for Rs. 1,000. The defendant on the same day passed in Bombay a chitti in respect thereof. The defendant admitted the payment of Rs. 1,000 on the 19 November 1917, and alleged that that amount was to be accounted for in the partnership account at the end of the year, and he further contended that the equitable mortgage and the agreement relied upon by the plaintiff did not come within the jurisdiction of the Court, as the agreement took place in Bombay, the amount was paid in Bombay and the defendant was doing business in Bombay and residing in Bombay.

(2.) The trial Court held that the Court had jurisdiction to try the suit, but as the chitti, Exhibit 12, on which the plaintiff relied, required registration, the suit failed. This decision was confirmed in appeal, and before us it has been argued, in the first place, that the defendant admitted that there was an equitable mortgage of his property, and therefore, the plaintiff on that admission was entitled to the decree he asked for. But I do not think it can be said that the defendant's pleading admits that there was an equitable mortgage which could be the basis of a decree. He merely refers in the written statement to the plaintiff's allegations and mentions what the plaintiff relies upon for establishing the creation of an equitable mortgage in Bombay.

(3.) Then it has been very strenuously urged that the document, Exhibit 12, does not require registration: and in order to determine whether it requires registration, we have to consider upon the proper construction of that document whether it creates a charge or an interest in the property mentioned therein; and with reference to documents connected with the deposit of title deeds, what the Court has to consider is laid down in Shaw V/s. Foster (1872) L.R. 5 E. & I. Ap. 321, 340 referred to in the judgment of the Privy Council in Pranjivandas Jagjivandas Mehta V/s. Chan Ma Phee (1916) I.L.R. 43 Cal. 895, P.C.: "Although it is a well established rule of equity that a deposit of a document of title, without more, without writing or without word of mouth will create in equity a charge upon the property referred to, I apprehend that that general rule will not apply where you have a deposit accompanied by an actual written charge. In that case you must refer to the terms of the written document, and any implication that might be raised, supposing there were no document, is put out of the case and reduced to silence by the document by which alone you must be governed."