ivil Appeal No 786 of 1966
Appeal by special leave from the judgment and order dated June 9 1964 of the Andhra Pradesh High Court in Appeal No 96 of 1969
K R Chaudhuri for the appellant
B V Subramanyam A Subba Rao for A V Rangam for respondent No 1
That was a suit instituted by the Andhra Bank Ltd the contesting respondent in this appeal
The suit was to recover the loans advanced to the Godavari Sugars Refiners Ltd defendant No 5 in the suit
The suit was decreed against all the defendants and that decree was affirmed by the High Court in appeal
The decree against the other defendants has become final
The only question that arises for decision in this appeal is whether the decree against the appellant is sustainable
The High Court rested the decree against the appellant only on the basis of exhibit A 6 a letter given by defendants 1 4 and another to the Masulipatam branch of the plaintiff bank while depositing Exhs
A 7 and A 8
In order to decide the correctness of the decree it is necessary to refer to the material facts as found by the trial court and the High Court and which are no more in dispute
Defendants I to 3 were the partners of a company known as Aid Co Ltd defendant No 6
That company was the managing agents of defendant No 5 the Godavari Sugars Re finers Ltd which will hereinafter be referred as Godavari Sugars
The first defendant was the Managing Director of the Aid Co Ltd On January 29 1952 the first defendant made an appli 211 cation on behalf of Godavari Sugars to the Andra Bank Ltd which will hereinafter be referred to as the Bank for a loan of three to four lakhs ofrupees under the keyloan and cash credit account and on the guarantee and co obligation of defendants 1 to 3 in their personal capacity also
The Managing Director and the General Manager recommended that applicalion to the Board of Directors upto a limit of Rs 125000
Before the sanction of the Board of Directors was obtained the first defendant requested the Managing Director to sanction Rs 50000 tentatively as there was urgent need
The Managing Director sanctioned a sum of Rs 50000 in anticipation of the loan to be granted in pursuance of the application EN A3 made by the first defendant on January 29 1952
The Managing Director authorised the agent of Bhimavaram branch to obtain the necessary documents signed by defendants 1 to 3 in their personal capacity as well as the first defendant as the Managing Director of the managing agents and on behalf of Godavari Sugars
A pronote and the cash credit agreement relating to that loan were handed over to the agent of Bhimavaram branch on April 24 1952 after the same were executed by defendants 1 to 3
Thereafter defendant I drew from the Bhimavaram branch Rs 20100 on April 25 1952 and Rs 9000 on April 25 1952
But he deposited a sum of Rs 8100 on April 25 1952
Thus a sum of Rs 21000 was due to the bank under the loan in question on April 26 1952
On that date the Board of Directors sanctioned the loan asked for under exhibit A 3 upto a limit of Rs 125000
Sometime thereafter the authorities of the Bank learnt that on a creditor s winding up petition a provisional liquidator for the Godavari Sugars had been appointed by the High Court of Madras without objection from defendants 1 to 3 on April 18 1952
That fact had not been brought to the notice of the Bank authorities by defendants 1 to 3 when the advances were made on the 25th and 26th of April 1952
After coming to know of that fact the Manager and the Managing Director of the Bank pressed defendants 1 to 3 to repay the amount drawn
But they were advised by Satyanarain Chowdary the father in law of the first defendant 2nd defendant is the wife of the first defendant and the third defendant his mother in law lo plead before the High Court that the Bank was a pledgee of the articles pledged for the keyloan and as such had a lien over the pledged goods in respect of the advances made
The Bank accordingly moved the High Court claiming a lien over the goods pledged but that claim was rejected by the High Court
In connection with the proceedings before the High Court the Bank incurred an expenditure of Rs 1548 10 6
The claim against defendants 1 to 3 is based on the above facts
That claim has been decreed as mentioned earlier
The decree to that extent has become final
212 Now coming to the claim against the appellant which is the only claim material for our present purpose the facts disclosing the cause of action against him as set out in the plaint paragraph 9 are as follows  The defendants 1 and 4 requested the plaintiffbank to refrain from taking legal action at that time after the bank s claim was rejected by the High Court and give them time
For all sums due till then and owing thereafter on any account by the defendants 1 and 4 either individually or jointly with others two titles deeds Exhs
A 7 and A 8 were deposited with the bank on 15 1 1953 at Masulipatam thereby creating Equitable Mortgage over the properties comprised therein and situated within the jurisdiction of this Honourable Court
In consideration of the above deposit the plaintiff bank refrained taking legal proceedings against the defendants 1 to 3 for the amount due and loss occurred to the plaintiff bank and an overdraft account was also sanctioned to the defendants 1 and 4
Thus the plaintiffbank has got security over the properties shown in the schedule covered by the two title deeds deposited with the plaintiff bank on 15 1 1953 at Masulipatam for the suit debt the particular of which are detailed hereunder
According to the plaint a mortgage by deposit of title deeds was created in pursuance of the contract set out above
In this appeal we are only concerned with the truth of that contract
The appellant denied the allegations contained in para 9 of the plaint
According to him he had nothing to do with the suit transactions and that he never requested the Bank to refrain from taking legal action against defendants 1 to 3
He went further and averred in his written statement that he did not know anything about the suit transactions till the Bank refused to return to him Exhs
A 7 and A 8
Dealing with the deposit of Exhs
A 7 and A 8 he averred that those documents were deposited to create an Equitable Mortgage to secure an overdraft loan of Rs 25000 borrowed by him and that deposit has nothing to do with the suit transactions
The only question for decision is whether Exhs
A 7 and A 8 were deposited to secure the suit debts
In order to decide that question it is necessary to set out a few more facts
Defendants 1 and the appellant are divided brothers
The first defendant was having his business in Madras
The appellant was having his business at Masulipatam
Madras and Masulipatam are quite far off from one another
Both the appellant and defendant No 1 appear to have had separate dealings with the 213 Bank even prior to the suit transactions
We have earlier referred to the loan application Exh
A 3 made by the first defendant and the advances made
From the pronote as well as the cash credit agreement referred to earlier it appears that the loan was made on the security of the goods belonging to Godavari Sugars as well as on the personal security of defendants 1 to 3
That is also the basis on which the Board of Directors of the Bank sanctioned the loan see Exh
Neither in Exh
A 3 nor in Exh
A 71 nor in any of the correspondence that passed between the Bank and defendant No 1 there is any reference to the fact of appellant s either standing as a surety for the loans advanced to the Godavari Sugars or his having given his property as security for that loan
It is also admitted that in the books of account kept by the Bank the Equitable Mortgage created by the deposit of Exhs
A 7 and A 8 is not shown as a security for the advances mentioned in the plaint
There is neither documentary evidence nor reliable oral evidence to support the averments in para 9 of the plaint
In none of the correspondence that passed between the Bank and defendant No 1 or that passed between the Bank and the appellant there is any mention of the fact that at the instance of the appellant the Bank had refrained from taking action against defendants 1 to 3
Nor is there any mention in them that because of the deposit of A 7 and A 8 along with the memorandum exhibit A 6 the Bank refrained from taking action against defendants 1 to 3
Neither the Manager nor the Managing Director of the Bank who have been examined in support of the Bank s claim spoke to the fact that they refrained from taking action against defendants 1 to 3 at the instance of the appellant or that they refrained from taking action against them because of the equitable mortgage referred to earlier
Three witnesses namely P Ws
1 to 3 were examined in support of the plaintiff s case
Neither PW 1 nor PW 2 speaks to the circumstances under which exhibit A 6 came to be executed
PW 3 the Managing Director of the Bank deposed in his Chief Examination as follows D 4 applied for a loan as per exhibit A 67
He met me in that connection
D 1 also met me in that connection
D 4 represented that D 1 had commitments in regard to Godavari Sugars that the and D 1 wanted monies and requested me to get exhibit A67 be sanctioned representing that they would deposit title deeds that Would be additional security to safeguard the interest of the bank
I told him that the loan of Rs 50000 could  be Sanctioned if he agreed to pay outright the amount due from D 1
D 4 represented that might prejudice our claim before the High Court as pledgee and that there would be 214 deposit of title deeds he
made a request ultimately to sanction at least Rs 25000
D 1 also represented that title deeds would dedeposited and requested that the loan might be granted
Under exhibit A 67 loan of Rs 25000 was granted
D 1 and D 2 gave title deeds as security for it
We did not take criminal action on the assurances given by them
This evidence is not consistent with the averments in plaint paragraph 9 to which reference has been made earlier
It makes out a new case
Further from that evidence it is clear that the deposit of title deeds exhibit A 7 and exhibit A 8 were made to secure only the loan of Rs 25000 given to the appellant
The uncontroverted evidence in this case clearly establishes that the said loan was borrowed by the appellant for his own business
Further in his cross examination PW 3 deposed that the deposit of title deeds was made in terms of Board s Resolution and as agreed to between the parties
The Board s Resolution granting loan to the Godavari Sugars on the application of defendant No 1 does not either directly or indirectly refer to any mortgage by deposit of title deeds or even to any security of immovable property for the loan in question
The question of depositing title deeds was not before the Board when the loan was sanctioned to Godavari Sugars
But the loan granted to the appellant as we shall presently see was on the basis of a mortgage by deposit of title deeds
Before considering the scope and effect of exhibit A 6 it is necessary to refer to the circumstances leading to the execution of exhibit A 6
On October 15 1952 under exhibit A 67 the appellant applied for a loan of Rs 50000
Column four in that application refers to the purpose for which the loan was asked
The answer given was For business
Under column Other additional guarantee or security answer given was On the security of title deed ie sites possessed by me at Vijayawada Krishna District which costs about one Lakh at present Market value In the covering letter the appellant stated 
sir As desired above I request for sanction of loan of Rs 50000 on secured overdrafts Being bound by your previous Bank Rules and also bound by any changes in them we will clear the loan according to your current Bank rate
Otherwise if we fail to clear the loan in time we will not only pay as and when necessary the penal interest but also agree to be bound by all the actions taken against us
215 Further changes in the particulars of the property given in the list have been affected
We have not made any sort of alienations whatsoever on this property
Until your loan is cleared we are not going to make any sort of alienations
If becomes necessary to do so we will do the same after obtaining your consent Be pleased to consider Sd Veeramachaneni Gangadhara Rao In Telugu
This application was placed before the Board of Directors on January 11 1953
The relevant agenda for the Board s con sideration reads as follows Loansand Overdrafts 3To consider the application of Mr Veerama chaneniGangadhararao
Masulipatam for a secured overdraft limit of Rs 50000 for one year at 7 pa on the co obligation of Messrs Kolli Surya Prakasa Rao and Adusumilli Venkata Krishna Rao and on the mortgage by deposit of title deeds relating to the applicant s sites of the extent of about 2662 sq
at Vijayawada of the approximate value of about Rs One Lakh
Resolution Sanctioned Rs 25000
 From the above facts it is clear that the loan of Rs 25000 granted to the appellant was a secured loan secured by a mortgage by deposit of title deeds in respect of his sites at Vijaywada
It may be noted that neither the appellant nor his co obligants are shown to have had anything to do with Godavari Sugars
It appears from the records of the Bank that some of documents deposited were not originals
Therefore the Bank found it necessary to have legal advice in the matter
According to the appellant one of the items covered by Exh
A 7 was of the joint ownership of himself and his brother defendant No 1 hence the officers of the Bank wanted defendant No 1 also to join in making the deposit of title deeds but defendant No 1 was a that time in Madras therefore a printed form was given to for getting the signatures of defendant No 1 the place at defendant No 1 was to sign in that form was marked in pencil that form was sent to Madras with his clerk accompanied by a bank official defendant No 1 s signatures were obtained there after the same was signed by him in the presence of the Bank s agent at Masulipatam and given to the Bank s agent without scoring out any of the words in the printed form
The appellant does not appear to be familiar with English language
As could 216 be seen in exhibit A 67
he has signed that same id Telugu
exhibit A 6 as mentioned earlier is in a printed form That was a ready made form which could be used for various purposes
It was an all comprehensive form relating to the deposit of title deeds
It is clear from the terms in that form that the parties were required to strike out the unnecessary terms and conditions in that form
Admittedly no term in Exh
A 7 was struck out
According to PW 1 the agent of the Bank the appellant brought that form at about 5 pm just when the Bank was about to close
Therefore he did not strike out the unnecessary words in that document
In this background we have to see whether Exh
A 6 is only a memorandum in support of the deposit of Exhs
A 7 and A 8 to secure the loan advanced to the appellant under Exh
A 67 or whether the deposit of title deeds in question were intended to secure that loan as well as all amounts due from defendant No 1 to the Bank
The loan advanced to the appellant under exhibit A 67 has been admittedly discharged and the pronote executed by him in that connection had been returned to him
The loans granted to Godavari Sugars were disbursed at the Bhimavaram Branch of the Bank as could be gathered from plaint paragraph 5
The loan sanctioned to the appellant was disbursed at the Masulipatam branch
A 6 A 7 and A 8 were produced in the Masulipatam Branch
The Masulipatam Branch does not appear to have had anything to do with the loans advanced to Godavari Sugars
We have earlier mentioned that in the accounts relating to the loan given to Godavari Sugars ther e is no mention as to the deposit of title deeds
All the correspondence relating to the loans granted to Godavari Sugars proceed on the basis that they were granted on the perso nal responsibility of the defendants 1 to 3 and on the pledge of the goods belonging to that company see exhibit
A 3 loan application exhibit A 2 agreement for cash credit on the security of pledged goods exhibit A 13 letter written to the agent Bhimavaram Branch by the General Manager of the Bank on April 15 1952 Exh
A 14 letter written by the General Manager to the Agent Bhimavaram Branch on April 16  letter written by the first defendant to the Bank on October 29 1952 But the correspondence that passed between the appellant and the Bank shows that the deposit of title
 deeds
was made to secure the loan advance to him under exhibit A 67
Under exhibit A20 the appellant wrote to the Bank on October 15 1952 as follows Dear Sir I have two sites at Bezwada worth about Rs 100000 and 1
propose to deposit Tide Deeds of the same and require a secured over draft of Rs 50000 against the same
My property statement is with you
I shall therefore be glad if you sanction the same at an early date    217 To the same effect is the loan application made by him on the same date
But an  overdraft of Rs 25000 only was sanctioned
On February 6 1954 the appellant wrote to the Bank that he had cleared the overdraft account of Rs 25000 but he wanted a renewal of over draft arrangement exhibit A 22
He sent a reminder in that connection on April 1 1954 exhibit A 23
As the Bank delayed in making available the over draft facility asked for he wrote to the Bank on Septr 20 1954 under exhibit A 25 as follows Masulipatam Dated 20 9 54
V Gangadhara Rao Chowdary Managing Director Indian Industrial  Scientific Co Ltd To The General Manager The Andhra Bank Ltd Masulipatam
Sir Sub Over Draft Facility granted to me
With reference to the over draft renewed by your Board of Directors in the month of May 1954 for Rs 25000 and which was not  allowed to be drawn by me I specially request you to kindly facilitate for my drawing an amount up to Rs 15000 from the over draft account is due to the stoppage of this facility which I am enjoying since 4 years my business is suffering a lot and immediate investment is necessary to meet urgent demands in my business of Scientific Apparatus etc
In this connection I confirm the discussion I had with your Managing Director at my residence requesting me to mediate for the amicable settlement of the affair of my brother  Sri V Butchiyya Chowdary with your bank regarding the keyloan account granted to Godavary Sugars and Refiners Ltd I shall be obliged for immediately allowing me to draw the amount
Thanking you
Yours faithfully Sd Illegible
 From this letter it is clear that the Bank was putting pressure on the appellant to persuade his brother defendant No 1 to amicably settle the suit loans That is also the  evidence of the appellant
The allegation in this letter that the Managing 218 Director was requesting the appellant to mediate for the amicablesettlement of the affairs of defendant 1 with the Bank regarding suit loans does not appear to have been repudiated in any of  the letter written by the Managing Director to the appellant
Though the Board of Directors of the Bank sanctioned on February 14 1954 the renewal of
the over draft facility asked  for by the appellant the appellant was not permitted to utilise that facility
The appellant s case is that the Managing Director of the Bank was using that opportunity to put pressure on him to see that defendant 1 discharged the suit loans
Being fed  up with the delaying tactics of the Bank the appellant withdrew his loan application and asked the Bank to return his title deeds
It is only at that stage that the Bank took up the position that the title deeds deposited were also intended to secure the amounts due from defendant 1 to the Bank
The appellant repudiated  that claim
Then the Bank issued the lawyers  notice exhibit A 18 to all the defendants on April 5 1954
Therein it was stated  for the first time that the Bank refrained from proceeding against defendants 1 to 3 in respect of the suit transactions at the instance of Satyanarayan Chowdary and the appellant and those two persons had agreed to indemnify the Bank any loss that may be caused due to those transactions
Further suggestion in that notice is that in pursuance of that agreement exhibit A 7 and A 8 were deposited under exhibit A 6
These allegations were repudiated  by the appellant in his registered reply notice exhibit A 19 date April 21 1954
From the above discussion it is clear that apart from exhibit A 6 there is absolutely no evidence to show that the deposit of Exhs
A 7 and A 8 was intended to secure not merely the loan advanced  to the appellant under exhibit A 67 but also to secure the suit loans
or other debts due from defendant to the Bank
The oral evidence of PW 3 the Managing Director is of no assistance as seen earlier
It does not connect the deposit of title deeds Exhs
A 7 and A 8 with any of the debts due from defendant 1
This leaves us with exhibit A 6 the printed form containing the terms and conditions under which Exhs
A 7 and A 8 were deposited
The material portion of that document reads as follows To The Agent The Andhra Bank Ltd Masulipatam
Dear Sir IWe write to put on record that as already agreed upon IWe have on 15 1 53 delivered by way of deposit 219 at Masulipatam the
following documents of title to immovable property with intent to secure the repayment to the Bank of moneys that are now due or shall from time to time or at any time be due from me us either solely or jointly with any other person or persons to the Bank whether on balance of account or by discount or otherwise in respect of Bills of Exchange Promissory Notes Cheques and other negotiable instruments or in any manner whatsoever and including interest
commission and other banking charges and any law costs incurred in connection thereto
LIST OF DOCUMENTS section Nature of Title Description Estimated No deed and date property and value exact situation 1
Sale Deed D 4 2 49
Two plots of house site bearing assessment No 7 501 in ward No 22 and bearing No 21612 N T section 663 Block No 13 sic Ward No 9 measuring 028 sic and the other O27sic 2
Registration Extract House site measuring 1140Sq
of Sale Deed D 30 12 36
bearing Town section No 599 in new Ward No 19 in Bezwada Town
3Encumbrance certificate Ec 574152
4Encumbrance certificate No Ec
555152
Name and Address Yours faithfully Sd 1
Veeramanchaneni Gangadhara Rao 2
V Butchaigh Chowdary 3
Sri Krishna Prasad being minor by father Veeramachaneni Gangadhara Rao 5
Plan of sic in N T section No 663 Block No 13 of Ward No 9 Vijayawada Town
220 As mentionedearlier this is a printed form
No part of that form had been struck out though the expressions I Me found in that document are inconsistent with the other portions of that document
We have earlier referred to the evidence of the agent of the Masulipatam branch of the Bank P W 1 that he did not strike out the unnecessary words in exhibit A 6 as it was presented before him late in the evening
The language of exhibit A 6 is undoubtedly wide and if it governs the agreement between the parties then there can be no doubt that the suit debts are also secured by the deposit of title deeds A 7 and A 8
In the first place exhibit A 6 for the reasons already mentioned must be held to be an incomplete document
Therefore it can not be considered as a contract between the parties
According to the plaintiff the appellant agreed to secure the debt due from the first defendant to the Bank in consideration of the Bank not proceeding against defendants 1 to 3
No such term is found in Exh
From the recitals of Exh
A 6 it is seen that that memorandum in question was intended to put on record the terms already agreed upon
That being the case the document cannot be considered as a contract entered into between the parties
If the parties intended that it should embody the contract between them it would have been necessary to register the same under section 17 of the 
As observed by this Court in Rachpal Maharaj vs Bhagwandas Daruka and ors1 that when a debtor deposits with the creditor 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 intended to create the charge and the document which constitutes the bargain regarding the security is also necessary and operates to create the charge in conjunction with the deposit it requires registration under section 17 of the Indian  I 1908 as a non testamentary instrument creating an interest in immovable property where the value of such property is one hundred rupees and upwards
 Therefore the crucial question is  Did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document If so the document requires registration
If on 1  221 the other hand
its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so then there being no express bargain the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention
and the document being merely evidential does not require registration
The law relating to the nature of a memorandum filed along with the deposit of title deeds or one filed thereafter has come up for consideration by courts in this country as well as in England
The decisions on the subject are numerous
We have already referred to the decision of this Court in Rachpal Maharaj s case 1
We shall now refer to two of the decisions  of the Judicial Committee
In Pranjivandas Mehta vs Chan Ma Phee2 dealing with the law on the subject Lord Shaw of Dunfermline observed The law upon this subject is beyond an doubt 1Where titles of property are handed over with nothing said except that they are to be security the law supposes that the scope of the security is the scope of the title
2 Where however titles  are handed over accompanied by a bargain that bargain must rule
3 Lastly when the bargain is a written bargain it and it alone must determine what is the scope and the extent of the security
In the words of Lord Cairns in the leading case of Shaw vs Foster 3 Although it is a wellestablished rule of equity that a deposit of a document of title without more without writing or without word of mouth will create in equity a charge upon the property referred to I apprehend that that general rule will not apply where you have a deposit accompanied by an actual written charge
In that case you must refer to the terms of the written document and any implication that might be raised supposing there were no document is put out of the case and reduced to silence by the document by which alone you must be governed In Subrmonian and anr
vs Lutchman and ors4 Lord Carson speaking for the Judicial Committee stated the law thus The law upon the subject admits of no doubt
In the case of Kedarnath Dutt vs Shamloll Khettry 5 Couch C J said The rule with regard to writings 1 1950 SCR548
2 LR43 IA123
3 1872 LR 5 HL321 341
4 51IA77
5 It Ben
LROCJ405
222 is that oral proof cannot
be substitute for the written evidence of any contract which the parties have put into writing And
the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement
If this memorandum was of such a nature that it could be treated as the contract for the mortgage and what the parties considered to be the only repository and appropriate evidence of their agreement it would he the instrument by which the equitable mortgage was created and would come within section 17 of the  Exhibit A 6 is not registered
If that document is considered as a contract of mortgage between the Bank and the depositors the same having not been registered it is inadmissible in evidence
If on the other band that document is considered as a mere memorandum evidencing the deposit of tide deeds in pursuance of an earlier contract then the correctness of the recitals therein can be gone into without being inhibited by sections 91 and 92 of the Evidence Act
Whichever view is taken the plaintiffs case must fail
On an overall consideration of the evidence and the probabilities of the case we are satisfied that Exhs
A 7 and A 8 were not deposited with the Bank to secure the debts due from defendant No I to the Bank In the result this appeal is allowed the decree and judgment against the appellant is set aside and the suit against him is dismissed with costs throughout
GC Appeal allowed


Summary:
The respondent Bank gave a loan to Godavari Sugars Refiners Ltd of which defendants 1 to 3 as partners were managing agents
Subsequently the bank filed a suit for the recovery of the loan
The appellant a brother of defendant No 1 was impleaded as defendant No 4 and Godavari Sugars as defendant No 5
The suit was decreed and the decree was upheld by the High Court
Only Defendant No4 appealed tothis Court
The decree against the appellant was passed on the basis of Exh
1 6 a document which was signed by Defendants 1  4 and in which it was recorded that the title deeds Exhs
A 7 and Exh
A 8 had been deposited with the respondent bank as security for money due
According to the appellant the said title deeds had been deposited by him as security for a loan given to him by the bank in his individual capacity and that the signature of defendant No I had been appended to Exh
A 6 only because he bad an interest in one of the properties covered by Exhs
A 7 and A 8 HELD
If the parties intend to reduce their bargain regarding the deposit of title deeds to the form of a document the document requires registration
If on the other hand its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so then there being no express
bargain the contract to create a mortgage arises by implication of the law from the deposit itself with the requisite intention and the document being merely evidential does not require registration
220 H 221A Rachpal Maharaj vs Bhagwandas Daruka  Ors  Pranjivandas Mehta vs Chan Ma Phee LR 43 IA 123 Shaw vs Foster 341 and Subramonian The language of exhibit A 6 was undoubtedly wide and if it governed the agreement between the parties then there could be no doubt that the suit debts were also secured by the deposit of title deeds A 7 and A 8
But exhibit A 6 could not be considered a contract governing the rights of the parties because a it was incomplete inasmuch as certain unnecessary words which were meant to be struck out were not actually struck out b while according to the plaintiff the appellant agreed to secure the debt due from the first defendant to the Bank in consideration of the Bank not pro ceeding against defendants 1 to 3 no such term was found in exhibit A 6 c from the recitals of Ex A 6 it was seen that the memorandum in question was intended to Put on record  the terms already agreed upon
If the parties intended that the document should embody the contract between them it would have been necessary to register the same under section 17 of the 
22OA D 14 1 section C India71 210 Exhibit A 6 was not registered
If that document was considered as a contract of mortgage between the Bank and the depositors the same not having been registered it was inadmissible in evidence
If on the other hand that document was considered as a  mere memorandum evidencing the deposit of title deeds in pursuance of an earlier contract then the correctness of the recitals therein could be gone into without being inhibited by sections 91 and 92 of the Evidence Act
Whichever view was taken the plaintiff s case must fail
On an overall consideration of the evidence and probabilities of the case it was established that Exbs
A 7 and A 8 were not deposited with the Bank to secure the debts due from defendant No 1 to the Bank
222C E The appeal must accordingly be allowed