TaxTMI 
TaxTMI 
1950 (5) TMI 43
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....espondents as evidencing the creation of the mortgage was compulsorily registrable under section 17 of the Indian Registration Act, 1908, and, not having been registered, was inadmissible in evidence to prove the mortgage. The Subordinate Judge of Darbhanga who tried the suit, and the High Court at Patna on appeal, held that the document did not require registration and was admissible in evidence, and accordingly decreed the suit. 3. The question turns on the proper construction of the memorandum and the circumstances under which it was delivered to the respondents. According to the evidence of the respondents' witnesses which has been accepted by the Courts below, the accounts relating to the appellants' dealings were examined on ....
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....ring to his creditor or his agent documents of title to immovable property with intent to create a security thereon." That is to say, when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage and no registered instrument is required under Section 59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not....
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....them, as the two latest pronouncements of the Privy Council, to which reference has been made, aptly illustrate cases falling on either side of the line. In Obla Sundarachariar v. Narayana Ayyar 58 I.A. 68 a signed memorandum was delivered to the mortgagee along with the title deeds of certain properties deposited as security. The memorandum stated "As agreed upon in person, I have delivered to you the under-mentioned documents as security," and listed the title deeds deposited. It was held that the memorandum was no more than a mere record of the particulars of the deeds and did not require registration. The criterion applied was : "No such memorandum can be within the section (section 17 of the Registration Act) unless on its face it em....