SUBRAMONIAN Vs. LUTCHMAN

JUDGEMENT

(1.) On July 15, 1908, the firms of Chettys owed to the original plaintiff, Mallady Sathalingum, whose executors the present appellants are, a considerable sum of money, and as security for the same deposited with him by way of equitable mortgage title deeds relating to certain properties oil the defendant Seedat and which had been deposited with the said firm by the said Seedat. On the occasion of such deposit a memorandum was signed and delivered to the said plaintiff in the following terms: From M.L.R.M.A. Soliappa Chetty and A.L.A.S.R.M. Chetty, Rangoon. To Mallady Sabhalingum, Rangoon. dated Rangoon, the 15 July, 1908. DEAR SIR, We hand yon herewith title deeds relating to fifth class Lob, No. 78, 79 and 80, Block E, each measuring 25 by 50 with building thereon belonging to Saleman Ahmed Seedat, also his promissory note for rupees sixty-three thousand (Rs. 63,000) due us, this please hold as security against advances made to us; we also hand you second mortgage executed in our favour by C. Ranga Sawmy Moodaliar on 1st class lot No. 6 in Block F1. On this we had advanced Rs. 32,000. Please also bold this as further security against advances made to us. We promise not, to deal with same till your amount due you is fully paid and satisfied. Witness: (Signed) C.E. SOLOMAN. Yours faithfully,(Signed) M.L.R.M.A. SOLIAPPA CHETTY.A.L.A.S.R.M. ALAGAPPA CHETTY.

(2.) This document was not registered, and the effect of such non-registration will have to be considered later. On December 17, 1909, the said plaintiff sent to the said firms of Chetty and the respondent Seedat notices demanding repayment of the monies due and interest. In the year 1910 a suit was brought for the dissolution of the said Chetty firms, and on April 5, 1910, Ramanathan Chetty was appointed Receiver by an order of the Court in the suit in the following terms: It is ordered that M.A.R.A.R. Ramanathan Chetty be and he is hereby appointed receiver on a monthly remuneration of Rs. 300 (three hundred only) to take charge of the property of the Chetty firms of M.L.R.M.A. and A.L.A.S.R.M. pending the decision of the suit for dissolution of partnership, with power to collect outstanding and do all things necessary for the realisation and preservation of the assets of the said firm.

(3.) The Receiver so appointed and the members of the Chetty firms being anxious to realise the debt due to them by Seedat, wrote to the plaintiff for the promissory note and the title deeds deposited with the plaintiff on July 15, 1908, in order to enable them to carry on proceedings against Seedat, and the plaintiff handed them over on condition that he received payment from the fruits of the decree. No suit, however, was brought, but Seedat gave the Chetty firms a legal mortgage dated August 26, 1910, over the properties included in the original equitable mortgage and also other properties which were not so included. The plaintiff agreed to this compromise upon condition that the mortgage of August 23, 1910, was deposited with the plaintiff and also the title deeds relating to the properties included in it as collateral security for the monies owing by the Chetty firms to the plaintiff. This deposit was carried out, and on this occasion a memorandum setting forth such deposit was signed by the Receiver, and is dated September 4, 1910. The present action was brought by the plaintiff as equitable mortgagee to enforce payment of the debt due to him by sale of the properties mortgaged by the said mortgage of August 26, 1910.