THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CIVIL REVISION PETITION No. 1176 of 2010 O R D E R: The two defendants in the suit instituted by the respondent are the revision petitioners. They have raised an objection when Ex.A1 was sought to be marked through P.W.1. The plaintiff construed Ex.A1 as a mere deed of agreement, whereas the two defendants-the petitioners sought to treat the same as a mortgage deed. If it is a mortgage deed, it was needed to be stamped properly and the fact that the said document has not been so stamped renders it inadmissible is the theory set up by the two defendants. The learned Judge while marking Ex.A1 has clearly pointed out that there is any amount of doubt as to whether the document in question answers the description of a mortgage deed at all. The question as to whether the said deed constitutes a mortgage deed or not, can be dependant upon several other crucial factors, which require to be ascertained, for which the defendants will have their turn to lead evidence. Therefore, subject to adducing evidence by the defendants, recording the said objection to the marking of Ex.A1, Ex.A1 is marked. It is this order, which is sought to be objected to in this Revision. Learned counsel for the petitioner places reliance upon the judgment rendered by a Special Bench of this Court in Midde Varaprasada Rao v. Collector of Krishna[1] (Case Referred No. 24 of 1954) under the Stamp Act. The Full Bench has dealt with this question in paragraph 5 of its judgment quite succinctly to the following effect: “ As the question has to be answered with reference to S. 2 clause (17) of the Indian Stamp Act, which defines a mortgage, it is useful to read that Section here: “Mortgage deed includes every instrument whereby for the purpose of securing money advanced, or to be advanced by way of loan, or an existing or future debt or the performance of an agreement, one person transfers or creates to or in favour of another, a right over or in respect of specified property.” It is manifest that in deciding whether a particular document answers the description of this clause, the crucial question is whether there has been a transfer or creation of rights over or in respect of specified property in favour of another. We have already noticed the relevant clauses of the deed, one of which provides that the four persons named above should have mortgage rights over the properties. That document also indicates that these persons were already put in possession of the properties for completing the construction, and for allied purpose and for management of the cinema. It is thus clear that all the essential elements that constitute a mortgage are present in this case. It is not the name that is given to a document that matters or the fact that the parties contemplated execution of further documents. If really a document operates to create rights of the nature contemplated by S. 2 clause (17) of the Indian Stamp Act in favour of persons who advance money, clearly the document is a mortgage. In this case, it is a usufructuary mortgage.” It is more than clear that it is not the title that is ascribed to a document what matters but the contents and nature of the transaction referred to therein. Until and unless the document answers the definition of ‘mortgage’, in respect of a specified property, by creating a right over it or in respect thereof in favour of another person, it does not amount to creating a mortgage at all. Therefore, if there is any doubt in the mind of the trial Court as to whether a particular piece of document has created right in favour of another person or not, until and unless such doubt has been clarified, by adducing evidence, it will not be possible to pronounce that the document in question is a mortgage deed. Therefore, the exercise of jurisdiction carried out by the learned Senior Civil Judge at Adilabad while trying O.S.No. 89 of 2009 cannot be faulted. The petitioners-defendants in the suit have every opportunity and right to lead evidence to demonstrate that rights have been created in favour of the respondent-plaintiff through the said document and hence, it amounts to a mortgage. Such right is preserved while marking Ex.A1. Therefore, I see no ground to entertain this Civil Revision Petition as there is no error of jurisdiction carried out by the trial Court. The Civil Revision Petition is accordingly dismissed. No costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 8th February 2010 ksld [1] AIR 1959 Andhra Pradesh 650