RACHPAL MAHRAJ versus BHAGW ANDAS. DARUKA AND OTHERS

Citation: [1950] 1 S.C.R. 548 · Decided: 05-05-1950 · Supreme Court of India · Bench: HARILAL JEKISUNDAS KANIA · Disposal: Dismissed

Judgment (excerpt)

1950 
M<g 5 
548 
SUPREME COURT REPORTS 
RACHPAL MAHRAJ 
"· 
BHAGW ANDAS. DARUKA 
and OTHERS 
[SHRI HARILAL KANIA c. J., 
PATANJALI SASTRI 
and DAs J J.] 
(1950] 
Indian Registration Act (XVI of 1908), s. 17-Transfer of 
Property Act (IV of 1882), s. 58 (f)-Memorandum of deposit 
of title deeds-When compulsorily registrable. 
The question 
whether 
a 
memorandum 
of 
deposit of title 
deeds is compulsorily registrable under section 17 of the Indian 
Registration Act, 
1908, as an instrument creating an interest in 
immoveable property, depends on whether the parties intended to 
reduce their bargain regarding the deposit 
to 
the 
form 
of 
a 
document. 
If so, the 
document requires registration. If, on the 
other hand, its proper construction and the surrounding circun1-
stances lead to the 
conclusion 
that 
the oarties did not intend to 
do so, 
there being no express bargain; the contract to create 
the 
mortg~ge 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 time factor 
is not decisive. 
Where accounts relating to the appeilant's dealings with the 
respondents were taken on a certain date and the appellant gave 
certain title dee9s to the respondents for being held as security 
for 
the amounts then found due and \.vhich may become due, and 
on 
the 
satne 
day the appellant gave a 
memorandum 
to the 
respondents in the form of a letter addressed to tlie respondents 
\.Vhich 
stated : 
"We 
write 
to put on record that to secure the 
repay1nent of the money already due to you from us on account 
of the 
business 
transactions 
bet\veen 
yourselves and ourselves 
and the monev that mav hereafter beco1ne 
due on account of 
such · transactio~s we 
have 
this 
day 
deposited 
with 
you 
the 
following title deeds relating to our properties at ...... with i11tent to 
create an equitable mortgage on the said properties to 
secure 
all moneys including interest that may be found due .... " · 
Held that the parties <lid not intend to create a charge by 
the • execution of the document, but merelv to record a transaction 
which had already 
been 
concluded 
and 
under which 
rights 
and 
liabilities had already 
been created and the document 
did 
not require registration. 
' 
S.C.R. 
SUPREME COURT REPORTS 
549 
Obla Sundarachariar v. Narayana Ayyar (58 I. A. 68) and 
Hari Sank,_ar Paul v. Kedar Nath Saha (66 I. A. 184) referred to. 
APPEAL (Civil Appeal No. LXVII of 1949 from a 
Judgment and Decree of the High Court of Judicature 
at Patna dated the 11th March, 1947, in F. A. No. 218 
of 1944. The material facts appear from the judgment. 
Shiva Prasad Sinha (Sri Kishan, with him) for the 
appellant. 
B. K. Saran for the 1st respondent. 
Respondents 2 to 13 did not enter appearance. 
1950. May 5. 
The jtidgrµent of the Court was 
delivered by 
19"50 
Rach pa!, 
Mahraj 
v. 
Bha.~wandas 
DarUka 
And Others 
PATANJALI 
SASTRI 
J.-This appeal arises 
out of 
Pataiyali Sn,tri ]. 
a 
suit brought by the respondents against the appel-
lant and other members of 11is 
joint family to enforce 
a mortgage alleged to have been created by the a11pel-
lant by deposit of title deeds on the 23rd October, 
1936, 
at Calcutta. 
The short point for determination in the appeal 
1s 
whether 
the memorandum 
signed 
and delivered 
by 
the appellant on 23rd October, 
1936, and relied upon 
by the respondents as evidencing 
the 
cre:.ll ion 
of tne 
mortgage was compulsorily registrable under section 
17 
of the Indian Registration Act, 1903, and, not ha1ing 
been registered, was 
inadmissible in evidence to prove 
the mortgage. 
The Subordinate 
Judge of Darbha!1ga 
who tried the suit, 
and the High Court at Patna on 
appeal, 
held that the document did not require registra-
tion 1md was admissible in evidence, 
and accordingly 
<lecrcnl the suit. 
The question turns on the proper construction ot 
die memorandum and the circumstances under ·which 
it was delivered to the respondents. 
Accorrling to the 
evidence of the respondents' 
witnesses which has been 
accepted by the Courts below, 
the accounts relating to 
the appellant's dealings were examined on the 23rd 
October, 
1936, 
and a large sum was found due to the 
respondents who deman<lcJ payment. 
The 
appelhnt 
thereupon brought aml gave certain documents, being 
1950 
Rach pal 
Mahraj 
v. 
Bhagwandas 
Daruka 
And Others 
Patanjali Sastri ]. 
550 
SUPREM

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