Oo Noung and Another vs Moung Htoon Oo and Others

Mitter and Grant, JJ.—We think that the present case is entirely governed by the judgment in Kedar Nath Dutt v. Sham Lal Khettry 11 B.L.R. 405. As in that case, so in this, the question is, whether the memorandum or the letter of deposit referred to in the questions submitted to us was itself a contract of mortgage, or simply evidence of a fact from which the mortgage could be inferred. We think for the reasons given in Kedar Nath Butt''s case that the letter of deposit, as it is called in the questions submitted to us, was not a contract of mortgage between the parties. The equitable mortgage was effected by the deposit of the title-deeds by the defendant No. 1 before the writing of that letter of deposit took place. In that letter it is simply recited that an equitable mortgage had been effected by the deposit of title-deeds.

Not only is the present case supported by the judgment of the Appellate Court, in the case of Kedar Nath Dutt, but it may also be supported by the reasons given in the judgment of Mr. Justice Macpherson, who heard the case of Kedar Nath Dutt in the Original Court. There the transaction, according to the view taken by the Appellate Court, was not completed till the debtor in that case executed the note of hand, but in this case the execution of the note of hand preceded the deposit of the title-deeds, and the letter of deposit was written about two hours after. That being so, we think that in this case the transaction was completed before the letter of deposit was written. Upon both these grounds we agree with the learned Recorder in the answers to be given to the questions submitted to us. But with reference to the second question, we desire to say that we by no means endorse his view that the plaintiffs would be entitled to a conveyance to them of the legal estate. This question, has not been referred to us, but if it were, we should be inclined to hold that the proper remedy is by sale of the mortgaged property.

The record will be returned to the lower Court, and u/s 57 of Act XVII of 1875 the costs of this reference shall be considered as costs in the suit.