Case: Deb Dutta Seal Vs. Ramanlal Phumra &amp; Others

1. This appeal by certificate of fitness granted by the High Court under Art. 133 of the Constitution is directed against its judgment and decree modifying the decree passed by the Trial Court. The Trial Court had decreed the suit and granted a preliminary decree against the appellant and another and had declared that the house at No. 35, Paddapukur Road, Bhowanipore, stood charge and/or mortgaged in favour of the plaintiffs ( respondents before us) for the due payment of the sum of Rupees 92182/3/6, and future interest was allowed at the contracted rate. The High Court modified the interest to 6 p.. c. per annum till suit and the same rate till realisation. As the High Court had modified the decree it granted a certificate under Art. 133 of the Constitution.The only point raised by the learned counsel for the appellant is that the document Ex. 2, dated December 17, 1951, required registration and was inadmissible in evidence.The said letter reads asthe 17th December, 1951Girdhari Lal Phumra, Esqr.,56,Burtolla Street,CalcuttaDear Sir,Re: 35, Puddo Pukur Road.I write to record that I delivered to and deposited with you this day at No. 56, Burtolla Street, Calcutta my title deeds relating to the premises No. 35, Puddopukur Road, Calcutta, solely belonging to me with intent to create security for my liability for the moneys payable under the three hundies dated this day for the sum of Rs. 80,000 (Rupees Eighty thousand only) drawn by me in your favour and I have undertaken to execute a legal mortgage at my costs whenever called upon by you to do so. I further assure you that the said premises No. 35, Puddo Pukur Road, is free from all encumbrances and the same absolutely. belongs to me.Yours faithfully,Sd/3. The only evidence led as to the circumstances in which this letter was executed is that of P. W. 1, Raman Lal Phurmra s/o late Giridharilal Phumra. The defendant denied the execution of the hundies referred to in the letters.It is necessary to extract the relevant evidence of P. W. 1. Heknow the defendants 1 and 2. Onmy father and myself lent Rs. 80,000 to defendant No. 1 for the purpose of his business and then the defendant No. 1 executed 3 Hundis for Rs. 35,000 Rs. 35,000 and Rs. 10,000 respectively on that date. The body of the Hundis was typed. The defendant No. 1 executed all the three Hundis and the defendant No. 2 accepted the same in my presence. The Hundis are marked Exts. 1 and 1B. Consideration for all Hundis was paid in my presence. On the same date, the defendant No. 1 gave his title deeds re: 35 Puddapukur Road after the execution of the Hundis as the security for the money. He gave the title deeds at our Gaddi at 56, Burtolla Street. He gave us this letter at the time of handing over the title deeds. The defendant No. 1 singed the letter of the list of title deeds in my presence. Letter is marked Ext. 2. List of documents is marked Ext.1 the defendant came to us and requested for a loan of Rs. 80,000 on the ground that it was urgently needed for business .. . My father read and approved of the title deeds and the defendant No. 1 made out the list. We know from long before that 35, Pudda Pukur Road belonged to defendant No. 1 . . .. I drafted the letter (Ex. 2) according to the draft usually made in such cases. The letters and title deeds were given together in the afternoon and the money was paid in the morning of the same day.Both the Trial Court and the High Court have held that this letter did not require registration. It seems to us that on the evidence reproduced above what happened was this. In the morning the money was advanced and the Hundis executed. In the afternoon the defendant brought the title deeds with a view to create an equitable mortgage. He gave the deeds to the father. The title deeds were approved and a list made by defendant No. 1 and at that moment the creation of equitable mortgage by deposit of title deeds was complete. Then the letter, Ex. 2 was given. When the witness says inthat the letters and the title deeds were given together in the afternoon it does not mean that the title deeds had not already been given.5. Ex. 2, dated December 17, 1951, on the face of it clearly does not create any mortgage. It records a past transaction and then the writer undertakes to execute a legal mortgage and further assures that the premises are free from all encumbrances, etc. The latter two provisions cannot make the document registrable because they do not create or declare any interest in the premises.

Reasoning:
The law on the point is quite clear and has been considered by this Court on at least three occasions. It is only necessary to mention the latest decision in United Bank of India v. Lakharam Sonaram and Co., AIR 1965 SC 1591   where Ramaswami, J., reviewed the earlier decisions bearing on theseems to us that the document did not intend to create a charge by its execution.We are not concerned with the correct interpretation of that memorandumbut if the decision lays down that even if a document on the face of it and properly interpreted in the light of the circumstances does not disclose the creation of a mortgage, or in the words of the Privy Council in Hari Sankar Paul v. Kedar Nath Saha, 66 Ind App 184 = (AIR 1939 PC 167  ), even if the document itself is not an operative instrument and is merely evidential, it requires registration, the decision cannot be approved.11. It seems to us that the document must contain all the essentials of the transaction and one essential is thatDate2. Date of repayment3. Sum secured4. Nature of mortgage5. Subject matter oftwo defendants in the suit were the appellant and one Deb Dutta Films Ltd. who was not a party to the mortgage. The facts about which there can be no dispute are as follows : A sum of Rupees 80,000/had been advanced on three hundies to which the defendants were parties on December 17, 1951 repayable within 60 days after date without grace, The hundies were silent as to interest. The money was advanced at the creditors place in the morning and in the afternoon Deb Dutta Seal, the appellant, went there with the title deeds of the above mentioned property which were examined by Girdharilal Phumra, the original plaintiff (now represented by the respondents).They were approved and deeds must be deposited by virtue of the instrument or acknowledge an earlier deposits of title deeds and say further, as was said in the case of Hari Sankar Paul 66 Ind App 184 = (AIR 1939 PC 167  ) that the title deeds shall be held as security on the said mortgage.12. Stress was also laid on the time element.Assuming that we are wrong in the interpretation that the deeds mentioned in the letter, after being shown to the father and approved, were handed back together, even then we are of the view that the document does not require registration because it is not an "operative instrument". It does not contain all the essentials of the transaction. What is registrable under the Indian Registration Act is a document and not a transaction.