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Judgment
It is urged that, though the document cannot be used or proved as a mortgage instrument, it may be proved as containing a personal covenant to
pay and we are referred to the decision in Gomaji v. Subbarayappa ILR 15 Mad. 253 In that case, however, there was no statutory bar to
receiving the document in evidence, though by reason of want of registration it could not affect the Immovable property comprised therein. In the
present case the document is itself excluded by the provisions of Section 68[2] of the Indian Evidence Act, since it purports to create a legal
mortgage.
Nor can the plaintiff company fall back upon the deposit of the title-deeds. There was no antecedent debt to secure which the title-deeds were
deposited, and it is clear from the plaint itself that the intention from its inception was to effect a legal mortgage. A legal mortgage was prepared
and accepted, but owing to neglect to comply with the requirements of Section 59 of the Transfer of Property Act it is invalid.
We must dismiss the appeal with costs.
[1]
[Section 59: Where the principal money secured is one hundred
Mortgage when to be by rupees or upwards, a mortgage can be effected only by a Regis-
assurance. tered instrument signed by the mortgagor and attested by at
least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage may be
Effected either by an instrument signed and attested as aforesaid, or (except in the case of a
Simple mortgage) by delivery of the property.
Nothing in this section shall be deemed to render invalid mortgages made in the towns
Of Calcutta, Madras, Bombay, Karachi and Rangoon, by delivery to a creditor or his agent of
Documents of title to Immovable property, with intent to create a security thereon.]
[2]
[Section 68: If a document is required by law to be attested, it
Proof of execution of shall not be used as evidence until one attesting witness at least
document requited by law has been called for the purpose of proving its execution if there
to be attested. be an attesting witness alive, and subject to the process of the
Court and capable of giving evidence.]