Judgment :- 1. The suit which gave rise to this appeal is for recovery of Rs. 3500/- that the 1st defendant owes to the plaintiff, with interest and costs, charged on plaint items Nos. 2 to 5. On March 25,1952 the 1st defendant offered to secure his debt on landed property, and on April 5,1952 he brought and delivered to plaintiff Ext. P-2, a deed of Otti, dated March 26, 1952 & registered on April 4, 1952, possessorily mortgaging plaint item No.1 for the amount with a conditional security on plaint items Nos. 2 to 5 in case of loss of the mortgaged property on account of any prior encumbrance thereon. The appellant was impleaded as the 2nd defendant stated to be a subsequent mortgagee of plaint items 2 to 5. He contended that Ext. P-2 was executed only after execution of Ext. D2 mortgage in favour of his father on March 31, 1952, and was antedated March 26, 1952, and that he was entitled to priority over the plaintiff. The court below found priority for the plaintiff, and in this appeal the appellant challenges the same. 2. The case in the plaint, inter alia, is that Ext. P-2 which had been delivered to the plaintiff by the 1st defendant on April 5,1952 was from beginning to end fraudulent and mischievous having been drawn contrary to the understanding between the 1st defendant and the plaintiff and is therefore to be set aside. On the above pleading, counsel for the appellant contended that the charge under Ext. P-2 on the plaint items 2 to 5 could have arisen only after April 5, 1952, and that therefore the appellant has priority of mortgage as per Ext. D2 which came into effect on March 31, 1952. 3. That Ext. D2 came into effect on March 31, 1952, was not disputed before me. Ext. D2 was admittedly executed by the 1st defendant, delivered to the appellant, presented by the appellant for registration and got registered with the co-operation of the 1st defendant on March 31, 1952, and has therefore come into effect the same day creating a mortgage on plaint items 2 to 5 favour of the appellant. The question is when did the plaint items 2 to 5 come security for the plaintiff's dues. Ext. The question is when did the plaint items 2 to 5 come security for the plaintiff's dues. Ext. P-2 bears date March 26, 1952, was registered on April 4, 1952 & delivered to the plaintiff on April 5, 1952. The Subordinate Judge found the plea of Ext. P-2 being antedated at its execution not been proved, and, relying on S.47 of the Registration Act, providing that a registered document operates from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration, held Ext. P-2 to have come to effect on March 26, 1952. The contention of the appellant, as formulated by counsel, is two fold: firstly, that Ext. P-2 was executed only after Ext. D-2 had come to effect; and secondly that the plaintiff cannot claim priority on the basis of a deed which he had not accepted. Strong reliance was placed on Aithros Haji v. Sekharan Nair (6 Cochin 345) wherein Anantharama Iyer, J., has observed thus: "Under the Indian Law signing and delivery alone are necessary to give complete operation to a document. The word "execute" under the Indian Law (the Registration Act for instance) is used in the sense of "signing" and the execution of a document therefore means signing it. But as stated before the date of signing or execution need not necessarily be the date on which the deed was written up, since when once the executant affixes his signature, the deed will, as was observed in an English case, speak from the date of its execution and not from the date apparent on the face of it (Browne v. Burtin 17 L. J. Q. B. 49). There is also provision in the Registration Act for registering a deed executed by several persons at different times. (S. 24. of Act XVI of 1908). Such provision clearly shows that the date of execution of a deed need not necessarily be the date appearing on the deed so far as persons executing the deed subsequently. Hence it is very doubtful that proving the execution of a deed in any way implies the inference that execution was on the date appearing on the face of the document. Hence it is very doubtful that proving the execution of a deed in any way implies the inference that execution was on the date appearing on the face of the document. In my opinion on the mere proof that a person admits the execution of a document does not in any way necessarily lead to the inference that the signature was affixed on the date appearing on the document or that the date appearing on a deed was the date in which it was really written. The one need not have any connection with the other. In a case therefore here the genuineness of a deed is impeached by a third party on the ground that it was not really executed on the date appearing on the deed it is not enough for the party who relies on the deed to prove merely its execution since as already remarked, the date of execution may be quite different from the date apparent on the face of the deed. Hence proof of genuineness of a deed, when its genuineness is impeached not merely on the ground that it was not really executed but also not on the date the deed bears must consist of evidence of persons who are in a position to say not merely that they saw the executants sign the deed but also that they signed it on the date the deed was written up. In the absence of such evidence no inference can be drawn that the date of execution is identical with the date appearing on the deed. As in the present case, there is no evidence to show that executants of Ext. I affixed their signatures on the date appearing on the face of Ext. I, I must hold that there is no legal proof that Ext. I was really executed on 8th Meenom 76." 4. Counsel for the respondent relied on Mina Kumari Bibi v. Bijoy Singh Dudhuria (1916, 44 Indian Appeals 72). The relevant passage therein reads thus: "It is a general, though not a conclusive, presumption that a document was made on the day of the date it bears, so that for what it is worth the plaintiff starts with that in her favour; but her case does not rest there, for such oral evidence as there is on the point supports the presumption, and was not seriously challenged by the cross-examination. It has been suggested that the plaintiff should have called other witnesses to the date of execution. But her advisers had no reason to apprehend that this contention would be advanced. It is not pleaded in the written statement, it is not raised in the issues, and the judgment of the first court certainly does not suggest that it was given prominence even at the trial." The above passage is clear that the presumption of execution on the date borne by the deed is of a weak type. It is a presumption that generally comes into play in the absence of a challenge as to the date of execution of the deed. The express assurance in Ext. D2 dated March 31, 1952 that there was no encumbrance on the properties (plaint items 2 to 5) could not have been made if the mortgagor had executed Ext. P-2 charging those properties on March 26, 1952. This one circumstance seems to counteract the presumption indicated in 44 I. A. 72 and require the plaintiff to lead positive proof of the execution of Ext. P2 on any day prior to the date of Ext. D2. The plaintiff has not adduced any proof in this regard. 5. Assuming that the presumption does apply in the present case, counsel points out that the plaintiff's own pleadings show that execution of Ext. P2 could not have been before April 5,1952. 'Execution' of conveyance, whether it be a mortgage or a charge on landed property, does not mean the mere signing of the relative instrument. The acceptance of the transaction is essential to make it effective in law. Such acceptance need not be express and may well be implied from attendant circumstances. Thus, if the instrument is executed in accordance with a prior agreement between the parties thereto, such agreement may be held to be anticipatory acceptance of the transaction by the party concerned. Likewise, if an instrument after signing is delivered to the other party and he does nothing to repudiate it, he may be found to have accepted the same. It is in this sense that the delivery of a deed is regarded as an essential part of its execution. Without the concurrence of the plaintiff a mortgage or a charge cannot be created in his favour by another. It is in this sense that the delivery of a deed is regarded as an essential part of its execution. Without the concurrence of the plaintiff a mortgage or a charge cannot be created in his favour by another. For a conveyance or a mortgage or a charge to take effect, the interest created must necessarily vest in the transferee or the chargee, and that can never be without his consent or concurrence thereto. 6. Sir D. F. Mulla in his well known work'Transfer of Property Act," observes, "without an antecedent contract to give and take there can be no transfer at all." 7. In Sundar Chaudhari v. Lalji Chaudhri (AIR. 1933 Patna 129) Sir Courtney-Terrell, c. J., observed: "If a man merely signs a contract and puts it in his pocket and does not allow it to depart from him as his act, that is not execution." Consequently his Lordship found the mortgagors' plea that they signed the mortgage bond but "never allowed it to depart from them or to come into possession of any other person who could make use of it and hold them bound by it" amounted to a denial of execution and then held "The onus of proving the mortgage lay upon the plaintiff and as he was foolish enough not to produce any evidence his suit has rightly been held to have failed throughout." 8. The plaintiff's disclaimer of Ext. P2 as been fraudulent from beginning to end and liable to be set aside by court indicates that even on the date of the suit he has not accepted Ext. P-2. It suffices for the appellant to rely on the plaintiff's plea that Ext. P2 had been executed by the 1st defendant contrary to the understanding between himself and the 1st defendant and that he came to know of Ext. P-2 only after it was put into his hands on April 5,1952. Ext. P2 could not then have the acceptance, or consent, or the concurrence of the plaintiff on any day prior to April 5,1952. Meanwhile, admittedly, Ext. D2, the mortgage in favour of the appellant came into effect on March 31, 1952. It then follows that, even if Ext. P-2 only after it was put into his hands on April 5,1952. Ext. P2 could not then have the acceptance, or consent, or the concurrence of the plaintiff on any day prior to April 5,1952. Meanwhile, admittedly, Ext. D2, the mortgage in favour of the appellant came into effect on March 31, 1952. It then follows that, even if Ext. P2 had been signed by the 1st defendant on March 26,1952, & the plaintiff is relying on it for his charge on plaint items 2 to 5, the appellant has the priority over the plaintiff. The decree of the Subordinate Judge has therefore to be modified accordingly. 9. Counsel for the plaintiff-respondent submitted that in any view the plaintiff is entitled to marshalling in respect of his security on plaint items 2 to 5. Ext. D2 covers other properties than are included in Ext. P2; but since the appellant has not so far sued for his mortgage money a proper occasion to determine marshalling has not arisen. It may however be made clear herein that the plaintiff may claim marshalling against the appellant-2nd defendant when the occasion arises therefor. 10. In the result, the appeal is allowed. The appellant's mortgage under Ext. D2, is declared to have priority over the plaintiff's claims on plaint items Nos. 2 to 5, and subject thereto the decree of the Court below is affirmed. The 1st defendant will pay the costs of the appellant here and in the Court below. Allowed.