VISALAKSHI AMMAL Vs. CKRISHNAVENI AMMAL

JUDGEMENT

(1.) This appeal raises the question whether an equitable mortgage is unenforceable by reason of the non-registration of a letter signed by the mortgagor at the time of the deposit of the title deeds. One P.M. Sadasiva Chetty, his sons Subramanian and Somasundaram (the third and fourth respondents), his brother Gangadhara Chetty and Gangadhara Chetty's son Thayamanava (the third defendant in the suit) constituted an undivided Hindu family. The family owned immovable property in Madras, 2-10 acres of land in Arasur village, Chingleput District and 42 acres of land and a rice mill in Ponneri village, which is also in the Chingleput District. The properties in Madras consisted of three houses and their sites, known as 16, Audiappa Chetti Street; 41, Guruvappa Chetty Street and 105, Egmore. High Road, respectively. On the 2nd August, 1930, Sadasiva, who was the manager of the family, borrowed from the first and second respondents Rs. 1,900 on a promissory note and as security deposited the titled deeds of No. 16, Audiappa Chetty Street. Before us it has not been disputed that this money was borrowed for the purposes of the family. At the time of the deposit Sadasiva signed and delivered to the mortgagees a letter in Tamil of which the following is the official translation: On the 2nd August, 1930, the collateral letter executed in favour of two persons (1) C.V. Krishnaveni Ammal and (2) C. Sundaram Chetti, residing in house No. 3, Cuddapah Rangiah Chetty Street, Periamet, Madras, by P.M. Sadasiva Chettiar, son of the late P. Munisami Chetti, Vannia Vaisya caste, Saivaite, merchant, residing in house No. 16, Audiappa Chetti Street, Chintadripet, Madras. On executing a pro- note to you this date, Rs. 1,900 (rupees one thousand and nine hundred) has been received in cash from you. For this sum, I have kept with you as security, house No. 16, Audiappa Chetty Street, said petta, said Madras and the original title deeds relating to. the property. At the time when I discharge the aforesaid bond, I shall take back this letter as well as the aforesaid title deeds. To t his effect have I executed this collateral letter with consent.

(2.) On the 22nd August, 1931, 41, Guruvappa Chetty Street, and 105, Egraore High Road, were mortgaged to the sixth defendant in the suit. He having died is now represented by his executrix, the sixth respondent. This mortgage was effected by a registered instrument signed by Sadasiva for himself as manager of the joint family and as guardian of the third defendant, whose father was then dead. On the 19 April, 1932, Sadasiva and his eldest son, the third respondent, executed two mortgage deeds in favour of the first and second respondents, one to secure Rs. 2,000, made up of the Rs. 1,900 borrowed on the 2nd August, 1930 and a further advance of Rs. 100, and the other to secure Rs. 500. The security for the first of these mortgages was No. 16, Audiappa Chetty Street and this mortgage was intended to take the place of the equitable mortgage. The security for the sum of Rs. 500 was the 42 acres of land and the rice mill in Ponneri village. The suit out of which the appeal arises was filed to enforce the mortgages.

(3.) On the 24 March, 1931, the minor third defendant through his mother, the appellant, instituted a partition suit on the Original Side of this Court (C.S. No. 471 of 1931). The minor died during the pendency of the suit and the appellant was made a party as his legal representative. The mortgage of the 19 April, 1932, which replaced the equitable mortgage of the 2nd August, 1930, having been created after the partition suit had been filed did not affect the minor's estate and the mortgagees are relegated to their rights, if any, under the equitable mortgage. The learned trial Judge (Wadsworth, J.) held that the letter which was given with reference to the deposit of title deeds did not require registration and therefore the minor's estate was bound by the equitable mortgage. On this basis he granted the mortgagees a mortgage decree in respect of the Rs. 1,900. Other contentions were raised before the learned Judge but the appeal -has been confined solely to the question whether the equitable mortgage of the 2nd August, 1930, can be enforced.