KEDAR NATH SAHA Vs. SIR HARI SANKAR PAUL

JUDGEMENT

(1.) The suit out of which this appeal arises was brought by the plaintiffs in order to obtain a decree in Form 5-A or alternatively in Form 5 of Appendix D, of Civil P.C. as amended by the Transfer of Property (Amended) Supplementary Act, 1919, so that they might recover such sum as should be found to be due in respect of principal and arrears of interest said to be due and payable under a memorandum of agreement dated 2nd August, 1924.

(2.) The case for the plaintiffs as it appears from their plaint was that on 24 July 2924 they lent and advanced to the defendants Kedar Nath Saha, Atindra Nath Saha and to one Jnanendra Nath Saha the sum of Rs. 12,000 and afterwards Kedar Nath Saha, Atindra Nath Saha and Jnanendra Nath Saha on the same date deposited with the plaintiffs at No. 11, Old Post Office Street in the city of Calcutta the title deeds of certain premises known as No. 75, Beniatola Street, Calcutta, with intent to create a security thereon for the repayment of the sum of Rs. 12,000 with interest thereon at the rate of 9 per cent. per annum. It was then averred that on 2 August, 1924, the plaintiffs lent to the same persons a further sum of Rs. 13,000 and the deposit of the title deeds relating to No. 75, Beniatola Street was to continue and to be treated as being security for the repayment both of the sum of Rs. 13,000 and the prior loan of Rs. 12,000 amounting in all to the sum of Rs. 25,000 together with interest on that sum at the rate of 9 per cent. per annum payable half-yearly with half-yearly rests, in default of repayment on 1 August 1927. It is stated in the plaint that on 2 August, 1924, Kedar Nath Saha, Atindra Nath Saha and Jnanendra Nath Saha executed at the premises No. 11, Old Post Office Street a memorandum in favour of the plaintiffs evidencing the fact of such deposit and the advances which had been made. It appears that Jnanendra Nath Saha died intestate sometime in the year 1929 and accordingly in his place his only son and heir Nripendra Narain Saha was made a defendant in the suit. The total amount claimed by the plaintiffs upon the basis of the averments which I have quoted was Rs. 44,464-13-0. Stated shortly, therefore, the suit was one brought to enforce an equitable mortgage, i.e. a mortgage by deposit of title deeds. Having regard to the material dates, the matter falls within the purview of the old Section 59 T.P. Act of 1882, that is to say, Section 59 it stood prior to the amendment of Act in the year 1929. Section 59 formerly read as follows: Where the principal earn secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal sum secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property.

(3.) Then follows this very important proviso: Nothing in this section shall be deemed to render invalid mortgages made in the towns of Calcutta, Madras, Bombay, Karachi, Rangoon, Moulmein, Baasein, Akyab and in any other town which the Governor-General in Council may, by notification in the Gazette of India specify in this behalf, by delivery to a creditor or his agent of documents of title to immovable property, with intent to create a security thereon.