SIKRI, J - (1.) THE majority Judgment of the court was delivered by
(2.) THIS appeal by certificate of fitness granted by the High courtunder Article 133 of the Constitution is directed against its judgment and decreemodifying the decree passed by the Trial court. The Trial court haddecreed the suit and granted a preliminary decree against the appellantand another and had declared that the house at No. 35, Paddapukur Road,Bhowanipore, stood charged and/or mortgaged in favour of the plaintiffs(respondents before us) for the due payment of the sum of Rs. 99,182/3/6,and future interest was allowed at the contracted rate. The High courtmodified the interest to 6 p. m. per annum till suit and the same rate till rea-lisation. As the High court had modified the decree it granted a certificateunder Article 133 of the Constitution. The only point raised by the learned counsel for the appellant isthat the document Ex. 2, dated 17/12/1951, required registrationand was inadmissible in evidence. The said letter reads as follows : " Calcutta the 17/12/1951Girdhari Lal Phumra, Esqr.,56, Burtolla Street,Calcutta.Dear Sir,Re : 35, Pudde Pukur Road. -823I write to record that I delivered to and deposited with you thisday at No. 56, Burtolla Street, Calcutta my title deeds relating to thepremises No. 35, Pudde Pukur Road, Calcutta, solely belonging to mewith intent to create security for my liability for the moneys payableunder the three Hundies, dated this day for the sum of Rs. 80,000.00(Rupees Eighty thousand only) drawn by me in your favour and Ihave undertaken to execute a legal mortgage at my costs whenever calledupon by you to do so. I further assure you that the said premises No. 35,Puddu Pukur Road, is free from all encumbrances and the same absolutelybelongs to me.Yours faithfully,Sd/- Deb Dutta Seal(DEB DUTTA SEAL)17-12-51". The only evidence led as to the circumstances in which this letterwas executed is that of P. W. 1, Raman Lal Phumra s/o Late GiridharilalPhumra. The defendant denied the execution of the Hundies referred to inthe letter and the letter. It is necessary to extract the relevant evidenceof P. W.1. He says: "I know the defendants 1 and 2. On 17-12-51 my father andmyself lent Rs. 80,000.00 to defendant No. 1 for the purpose of his businessand then the defendant No. 1. executed 3 Hundis for Rs. 35,000.00, Rs.35,000.00 and Rs. 10,000.00 respectively on that date. The body of theHundis was typed. The defendant No. 1 executed all the threeHlindis and the defendant No. 2 accepted the same in my presence.The Hundis are marked Exts. 1 and 1-B. Consideration for all Hundiswas paid in my presence. On the same date, the defendant No. 1gave his titles deeds re : 35 Puddapukur Road after the execution of theHundis as the security for the money. He gave the title deeds at ourGaddi at 86, Burtolla '.Street. He gave us this letter at the time ofhanding over the title deeds. The defendant No. 1 signed the letter ofthe list of title deeds in my presence. Letter is marked Ext. 2. List ofdocuments is marked Ext. 3." In cross-examination he stated : "On 17-12-51 the defendant came to us and requested for a loan ofRs. 80,000.00 on the ground that it was urgently needed for business. .....My father read and approved of the title deeds and the defendant No. 1made out the list. We know from before that 35, Pudda Pukur Roadbelonged to defendant No. 1.......... I drafted the letters (Ex. 2)according to the draft usually made in such cases. The letters and titledeeds were given together in the afternoon and the money was paid inthe morning of the same day."
(3.) BOTH the Trial court and the High court have held that this letterdid not require registration. It seems to us that on the evidence reproducedabove what happened was this. In the morning the money was advancedand the Hundis executed. In the afternoon the defendant brought the titledeeds with a view to create an equitable mortgage. He gave the title deedsto the father. The title deeds were approved and a list made by defendantNo. 1 and at that moment the creation of equitable mortgage by deposit oftitle deeds was complete. Then the letter, Ex. 2 was given. When thewitness says in cross-examination that the letters and the title deeds were824given together in the afternoon it does not mean that the title deeds had notalready been given. Ex. 2) dated 17/12/1951, on the face of it clearly does notcreate any mortgage. It records a past transaction and then the writerundertakes to execute a legal mortgage and further assures that the premisesare free from all encumbrances, etc. The latter two provisions cannot make thedocument registerable because they do not create or declare any interest inthe premises.;