Judgment :- 1. The 1st defendant is the appellant. The suit was to recover the principal and interest due under a mortgage by deposit of title deeds. The plaintiff's case was that defendants 1 and 4 deposited the documents of title of their properties with its Head Office at Kozhikode with intent to create a mortgage as security for an overdraft accommodation to the tune of Rs. 7,000/-. It may be noted at this stage that the equity of redemption of the properties was sold at the instance of the Government and was purchased by one Muhammad who in turn assigned it to the 2nd defendant. 2. The main contentions of defendants land 4 were that they had not deposited the title deeds at Kozhikode with intent to create a mortgage, that the title deeds were handed over and deposited with the Tirur branch of the plaintiff Bank, that Tirur was not a notified area where a mortgage by deposit of title deeds could be created, that the plaintiff had returned some of the title deeds to the 4th defendant, the legal effect of which was a proportionate abatement in the claim secured under the mortgage, that the plaint claim was barred by limitation and that the properties were not liable to be sold in execution. 3. The lower court on a consideration of the evidence found that the documents of title were deposited by defendants 1 & 4 at Kozhikode, & therefore the mortgage was valid and decreed the suit as prayed for. 4. Mr. Mohammed Naha, appearing for the appellant argued that the equitable mortgage was invalid as the documents of title were delivered not at Kozhikode as held by the court below but at Tirur as contended by his client. The point for consideration, therefore, is whether the title deeds were delivered at Kozhikode with the intent to create a mortgage in respect of the properties covered by those deeds. 5. Defendants 1 and 4 applied for overdraft accommodation undertaking to deposit the documents of title of the properties belonging to them and Ext. 12 is the copy of the application made at the Tirur Branch of the plaintiff Bank. They also gave the title deeds to the Branch at Tirur for scrutiny and approval. 5. Defendants 1 and 4 applied for overdraft accommodation undertaking to deposit the documents of title of the properties belonging to them and Ext. 12 is the copy of the application made at the Tirur Branch of the plaintiff Bank. They also gave the title deeds to the Branch at Tirur for scrutiny and approval. On the basis of that application the audit-inspector of the Bank pw.1 came and inspected the properties proposed to be secured and the title deeds were handed over to him by the Branch at Tirur for the purpose of scrutiny at the head office of the Bank at Kozhikode. For that purpose he took the documents of title to Kozhikode and there they were examined by the legal advisers of the plaintiff Bank and they were, at the time when the memorandum of deposit and the accompanying documents were executed, in the custody of the Head Office of the Bank at Kozhikode. It is not disputed that the title deeds were handed over by defendants 1 and 4 at the Tirur Branch of the plaintiff Bank. It is also clear from the evidence of pw.1 that the Tirur Branch could not have given the over-draft accommodation on the security of a mortgage by deposit of the title deeds without the permission of the Head Office at Kozhikode as the authority for the same was in the Head Office of the Bank. So when the documents of title were handed over to the Branch at Tirur, according to the normal practice, known and assented to by defendants 1 and 4, they were sent to the Head Office for the purpose of examination and scrutiny. I think the position of the plaintiff at that time was that of a person holding the custody of the title deeds for a specific purpose. 6. The plaintiff's case was that defendants 1 and 4 came to Kozhikode on 151947 and executed Exts. A-4, A-5 and A-6, the pronote, the memorandum of deposit and the document containing terms and conditions of the loan respectively. The court below has relied on the evidence of pws.1 and 2 for coming to the conclusion that the defendants 1 & 4 came to Kozhikode on 151947 and formally delivered the title deeds after getting them back to the Bank with intent to create a mortgage. 7. The court below has relied on the evidence of pws.1 and 2 for coming to the conclusion that the defendants 1 & 4 came to Kozhikode on 151947 and formally delivered the title deeds after getting them back to the Bank with intent to create a mortgage. 7. pw.1 is the audit inspector of the Bank at the head-quarters and pw. 2 is the accountant of the Bank employed in the Head Office. pw. 2 is an attestor in Ext. A-6. pw. 2 is very definite that Exts. A-1 and A-2 along with the other title deeds were handed over to defendants 1 and 4 from the Bank and they formally delivered them to the Bank with the intent to create a mortgage. pw.1 although he speaks to the formal delivery of the title deeds by defendants 1 and 4, was not there at the Head Office of the Bank on that date. That is apparent from his cross-examination. It is no doubt true that Ext. A-22 register was signed only by the 1st defendant. If the 4th defendant had been at Kozhikode it is probable that the Bank would have insisted upon his signature also in Ext. A-22. The plaintiff has a case that the 1st defendant was authorised by the 4th defendant to deliver the documents of title to the Bank at Kozhikode. But I am notable to come to any definite conclusion on that question because the case was not approached by the court below from that angle and no evidence also was adduced by the plaintiff to prove the same. It would appear that all the documents relating to this transaction were executed at Kozhikode. Exts. A-4, A-5 and A-6 would indicate that they were executed at Kozhikode. The case that the 4th defendant did not come to Kozhikode to deliver the documents of title has not been made out by any reliable evidence on his part. If the evidence of pw. 2 is believed there is nothing inherently improbable in the case put forward by the plaintiff that defendants 1 and 4 were at Kozhikode and executed the documents Exts. A-4, A-5 & A-6 and delivered the documents of title on 151947 at Kozhikode. The signature of the 4th defendant in all these documents apparently executed at Kozhikode on 151947 would show that he was also at Kozhikode on that date. A-4, A-5 & A-6 and delivered the documents of title on 151947 at Kozhikode. The signature of the 4th defendant in all these documents apparently executed at Kozhikode on 151947 would show that he was also at Kozhikode on that date. Even assuming that he had not gone to Kozhikode I do not think that that would make any difference in the legal nature of the transaction. As I have said the Bank was merely the custodian of the documents of title till the date of Exts. A-5 and A-6, Ext. A-5, as already stated, is the memorandum which evidences the deposit of title deeds with the Bank by defendants 1 and 4 on 1-5-1947. The plaintiff which had the custody of the title deeds at its Head Office at Kozhikode became the equitable mortgagee by virtue of the change in the animus of defendants 1 & 4 as evidenced by the execution of Exts. A-4, A-5 and A-6. Delivery of possession of the title deeds need not be by actual physical delivery. If the Head Office of the Bank at Kozhikode was in custody of the documents of title when the defendants indicated their intention to create a mortgage by deposit of title deeds, there was a constructive delivery of the title deeds to the Bank at Kozhikode for that purpose. That position appears to be clear from the authorities. Salmond in his book on jurisprudence, 10th Edn., page 306 states the law as follows: "Constructive delivery, on the other hand, is all which is not actual, and it is of three kinds. The first is that which the Roman lawyers termed traditio brevi manu, but which has no recognised name in the language of English law. It consists in the surrender of the mediate possession of a thing to him who is already in immediate possession of it. If, for example, I lend a book to someone, and afterwards, while he still retains it, I agree with him to sell it to him, or to make him a present of it, I can effectually deliver it to him in fulfilment of this sale or gift, by telling him that he may keep it. It is not necessary for him to go through the form of handing it back to me and receiving it a second time from my hands. It is not necessary for him to go through the form of handing it back to me and receiving it a second time from my hands. For he was already in the immediate possession of it, and all that is needed for delivery under the sale or gift is the destruction of the animus through which mediate possession is still retained by me." (See "Possession in the Common Law" by Pollock and Wright page 75 and "Possession in the Civil Law" by Von Savigney page 55 compiled by J. Kelleher). It was not necessary for the Bank to have handed over these documents to defendants 1 and 4 and got a formal delivery of them from these defendants at Kozhikode in order to create a valid equitable mortgage. The change in the intention of defendants land 4 consequent upon the execution of Ext. A-5, the memorandum of deposit, and other documents was sufficient to operate as delivery of the title deeds to the Bank at Kozhikode with intent to create a mortgage on the properties covered by them. It was not therefore necessary that the 4th defendant or for that matter the 1st defendant should have been present at Kozhikode. Even if it be assumed that defendants 1 and 4 executed Exts. A-4, A-5 and A-6 at Tirur as contended by them, it would make no difference in the legal consequence. The change in the intention of defendants 1 and 4 evidenced by the execution of the memorandum of deposit and other documents would operate as delivery of the documents of title to the Bank at Kozhikode with intent to create a mortgage. 8. Therefore in any view of the matter, I think that a valid equitable mortgage was created on the properties. 9. The respondent contended that the appellant was incompetent to file this appeal as he was not aggrieved by the decree of the lower court. I am not quite satisfied that the appellant is not aggrieved by the decree of the court below. It is, however, unnecessary to consider that point in view of my finding on the main point argued in this case. Mr. Naha attempted to argue that since the Bank had released certain title deeds to the 4th defendant the 1st defendant and his properties were exonerated from the mortgage liability proportionate to the value of the properties released. It is, however, unnecessary to consider that point in view of my finding on the main point argued in this case. Mr. Naha attempted to argue that since the Bank had released certain title deeds to the 4th defendant the 1st defendant and his properties were exonerated from the mortgage liability proportionate to the value of the properties released. But I think that it is open to the mortgagee to release any item of property from his mortgage and recover the whole amount from the remaining properties. 10. In the result, I agree with the conclusion of the court below, confirm the decree of that court and dismiss the appeal with costs of the 1st respondent. Dismissed.