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TMI Blog1936 (2) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs informed the defendants that they will not be accepted and further stated as follows :- Therefore you will please mortgage to us for ₹ 2500 some field owned by yourself and send the deed from the same place after getting (it) Registered in our name. Otherwise if there be any field which has been purchased in your name you will please send the sale-deed addressed to us simply by registered (post). Otherwise, if you have got with you any sale-deed in favour of another person then along with the said deed you will please send a letter written by him stating that he is giving us the said deed as taran (margin money) in connection with Bala Krishna Poonju's bales.... In reply, the defendants wrote a letter dated September 15 in which they stated :- Your letter was received yesterday. Accordingly, as required by you, a sale-deed has been sent to you. The particulars thereof are :- * * * * * * * The said sale-deed is deposited (with you) as security on account of my fifty bales of cotton which are lying with you. The said deed is in favour of Hari Poonju Mali. But we both of us are brothers and are joint. Moreover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the bales and claimed a deficit of ₹ 2,632-13-11 from the defendants by their letter of October 6, 1934. At the request of the plaintiffs the defendants also confirmed that they were indebted to the plaintiffs for ₹ 2,63243-11. 3. The defendants at first contended that they were agriculturists within the meaning of the Dekkhan Agriculturists' Relief Act and the Court had no jurisdiction to try the suit. The plaintiffs, thereupon, elected not to claim a personal decree against the defendants and proceeded with their suit only as a mortgage suit. The only point in dispute which therefore remained to be decided was whether there was a valid equitable mortgage created in favour of the plaintiffs by the defendants sending the title-deeds as mentioned above. On behalf of the defendants it is urged that, having regard to the wording of Section 58, Clause (f), of the Transfer of Property Act, it is necessary that the person making the deposit of title-deeds should be in Bombay and it is not permitted to send the title-deeds by post. The clause was inserted, in Section 58, by Act XX of 1929. Before that amendment, the relevant portion of Section 59 ran as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange in the law as to the rights of the parties. Under the old section it was necessary that the deposit should be made in Bombay and that could be done through an agent also. Under the present, provision also, in my opinion, it is not necessary that the debtor giving the security should be in Bombay personally. As I read the section it means that the person should deposit the title-deeds in Bombay to a creditor. I realise that it would have been perhaps better if the legislature had put the word delivers immediately after the word person in Clause (f), instead of putting. it after the various towns mentioned therein. Even taking the sequence as it is, I am unable to hold that the various towns cannot be read properly as going with delivers and must be read in connection with person only in the section. Under the circumstances the proper construction of the clause is that the debtor should deliver, in any of the towns mentioned in the clause, to a creditor or his agent, the documents of title to immoveable property with intent to create a security thereon. The question, therefore, must resolve itself into a question of fact, whether on the evidence it was established th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inded. It is, therefore, urged that the post office could not be considered the plaintiffs' agent in India. 6. It, therefore, remains to be determined, on the evidence, whether the title-deeds were deposited in Bombay. While realising that in some peculiar circumstances there may be no separate agreement to deposit the title-deeds, I think the agreement must ordinarily precede the actual transfer of interest in immoveable property, as denned by the term mortgage in the Transfer of Property Act. Section 58, Clause (f), requires that the deposit should be with the intention to create a security and that intention must be conveyed to the creditor and the title-deeds accepted by him on that footing. Therefore, there must be an offer to deposit the title-deeds with the necessary intention and acceptance of that offer theoretically, before the title-deeds actually pass from the possession of one to the other. It may be that in certain cases, the two acts being together, it may be difficult to exactly point out the moment the agreement took place, before the title-deeds were handed over, as the agreement may be completed By the act of handing over the title-deeds by one and rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs had intimated that the defendants should send the title-deeds by post. 'If so, that is sufficient to make the post office their agent to receive the title-deeds on their behalf. Reading the correspondence as a whole in 1931, it seems to me, therefore, that the plaintiffs having constituted the post office their authorised agent to receive the title-deeds and intimated the same to the defendants, as soon as the defendants sent the title-deeds accordingly, under Section 7 of the Indian Contract Act the transaction was complete. The plaintiffs' contention that the defendants could have cancelled the security before the documents were received in Bombay is incorrect because it assumes that the transaction remained incomplete when the title-deeds were posted. In respect of the subsequent title-deeds received in 1934 also the plaintiffs demanded the same and although in those letters there is no express reference to the post office, reading the correspondence as a whole, it seems clear that the suggestion was that the other title-deeds should also be sent by post. In fact they were so sent. 9. On behalf of the plaintiffs reliance was placed on the decision in Jagjivan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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