RACHPAL MAHARAJ Vs. BHAGWANDAS DARUKA

JUDGEMENT

(1.) This is an appeal by defendant 1 Rachpal Maharaj againat a decree for sale on the foot of an equitable mortgage.

(2.) The plaintiffs-respondents carry on business in Calcutta under the name of Thanmal Chunilal. They sued on the allegation that the defendants form a joint family carrying on a joint family business and governed by the Mitakshara law, with the defendant-appellant as its karta, and have been carrying on monetary transactions for a long time with the plaintiffs. They allege that the equitable mortgage was created by defendant 1 by the deposit of the title deeds in Calcutta on 23-10-1936, as security for the amount found due on the transactions between the parties up to date and for the transactions to be entered into in future. The documents are set out in Schedule 2 to the plaint and the property cove, red thereby is given in Schedule 1. The claim was for Rs. 10,322-2-6 with interest at nine annas per hundred rupees per month compoundable with yearly rests. The main defence set up by defendant-appellant was, firstly, that there was no equitable mortgage as alleged, and that the deeds in question were made over to the plaintiffs at Darbhanga not as security for transactions between the parties but merely for the purpose of safe custody, as a misunderstanding had arisen between defendant 1 and the other defendants and he was afraid that the other defendants might deprive him of these documents; Secondly, that, on transactions between the par ties, the defendants were the creditors and not the debtors of the plaintiffs, and, thirdly, that there was no stipulation regarding the payment of interest, compound or simple. All these contentions were negatived by the subordinate Judge, and he decreed the suit accordingly, allowing interest at six per cent, per annum pendente lite future interest at the same rate. On the creation of the equitable mortgage by the deposit of the title deeds in Calcutta, the plaintiffs have adduced evidence, which the Subordinate Judge has rightly characterised as unimpeachable, and the correctness of his finding of facts on this point has not been challenged before us. Only three contentions were pressed firstly, that the suit must fail because the contract between the parties was reduced to writing in the shape of a document (Ex. 3), which must be excluded from evidence under the provisions of Secs.17 and 49, Registration Act and itself excludes oral evidence of the contract under the provisions of Section 91, Evidence Act; secondly, that the plaintiffs are not entitled to any interest previous to the filing of the suit; and thirdly, that the Subordinate Judge was wrong in accepting as genuine the alleged signatures of the appellant on the account books of the plaintiffs and should have reopened the account between the parties.

(3.) The document (EX. 3) is a letter dated 23-10-1936, addressed to Messrs. Thanmal Chunilal and signed by the defendant-appellant on behalf of the defendants firm Bamraehpal Surajmal. It was signed and made over to the plaintiffs on the very day when the title deeds were deposited with them by way of security. Its is as follows: We write to put on record that to secure the repay merit of the money already due to you from us on account of the business transaction between yourselves and ourselves and the money that may hereafter become due on account of such transactions we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7, Sambha Mulliek Lane relating to our properties at Samastipur with intent to create an equitable mortgage on the said properties to secure all monies including interest that may be found due and payable by us to you on account of the said transactions. Then follows a list of the property referred to. It is contended that this document constitutes the bargain between the parties and, therefore, was compulsorily registrable under the provisions of Section 17, Registration Act.