AIR 2010 KERALA 90 ::(2010) 2 CivilCourtC 157 ::2010 (2) CurCC 217 ::2010 (1) Ker LT 765 ::(2010) 88 AllIndCas 533 (KER) ::2010 (88) AllIndCas 533

Kerala High Court

Hon'ble Judge(s): Kurian Joseph, P. Bhavadasan , JJ

Transfer of Property Act (4 of 1882) , S.58(f)— Registration Act (16 of 1908) , S.17(1)(b)— Equitable mortgage - Registration - Very act of deposit of title deeds with intention to provide property as security - Sufficient to create equitable mortgage - Need not be registered - However, if transaction is reduced into writing by a document creating mortgage, registration of such document is mandatory. For the creation of an equitable mortgage, three conditions are required, i.e. (1) There should be a deed, (2) Deposit of title deeds, and (3) An intention that the deed should be a security for the debt. It is not necessary that the mortgage should be created by a registered document. The very act of deposit of title deeds with the intention to provide the property as a security is sufficient to constitute equitable mortgage. Quite often, what is found is that later, a memorandum of deposit of title deed is taken by the mortgagee, which only evidences creation of an earlier equitable mortgage by deposit of title deeds. The law is well settled that in such cases, memorandum of deposit of title deeds which evidences the creation of an earlier equitable mortgage need not be registered. But if, on the other hand, the terms of the transaction are reduced into writing and it is by the said document that the mortgage is created, then, for a valid mortgage, the documen....