Judgment :- ISMAIL, J. 1. The second defendant in O.S. No. 11 of 1960 on the file of the Court of the Subordinate Judge, Thanjavur is the appellant herein. The appellant is the son of the first defendant, Kandaswami Pillai, and the first defendant is the son of one Neehmegham Pillai. Ex. A.1 d. 30th November 1939 is a registered mortgage deed executed by Neelamegham Pillai and the first defendant, the first defendant for himself and as guardian of the appellant, who was a minor at that time, for Rs. 60,000/- in favour of one Chidambaram Chettiar. In a suit for partition instituted by the sons of Chidambaram Chettiar in O.S. No. 42 of 1950 on the file of the Court of the Subordinate Judge, Pudukottai, the interest of the mortgagee under Ex. A.1 were alloted to the shares of defendants 3 to 7, namely, the widow and sons of Chidambaram Chettiar aforesaid. Chidambaram Chettiar himself died on 18th June 1952. He had borrowed moneys from the plaintiff-Bank and defendants 3 to 7 acknowledged the liability of Chidambaram Chettiar to the Bank and created an equitable mortgage by deposit of title deeds in respect of their mortgage interest under Ex. A.1. In favour of the plaintiff-Bank. For this purpose they deposited the mortgage deed, Ex. A.1 itself with the plaintiff. This deposit took place on 3rd February 1953 at the Head Office of the Bank at Madurai. The plaintiff-Bank wrote a letter d. 3rd February 1953, marked as Ex. A.10, addressed to the fourth defendant, acknowledging the receipt of the document of title. On the next day, that is, on 4th February 1953, a letter was written by all the five persons, namely, defendants 3 to 7, addressed to the Agent of the Bank of Pudukottai referring to the deposit of Ex. A.1 as a title deed, with intent to create a mortgage in respect of the amounts due by Chidambaram Chettiar, subsequently acknowledged by them, to the Bank. That letter is marked as Ex. A.11. It was thereafter the present suit was instituted by the Bank impleading the father of the appellant and the appellant as defendants 1 and 2 and the widow and the sons of Chidambaram Chettiar as defendants 3 to 7 and three other persons who claimed interest in the properties by virtue of subsequent alienations. A.11. It was thereafter the present suit was instituted by the Bank impleading the father of the appellant and the appellant as defendants 1 and 2 and the widow and the sons of Chidambaram Chettiar as defendants 3 to 7 and three other persons who claimed interest in the properties by virtue of subsequent alienations. The prayer in the suit was that the amount due under the mortgage deed referred to in paragraph 3 of the plaint, namely, Ex. A.1 be declared to be Rs. 1,58,900/- as on the date of suit and for payment of Rs. 68,576-84 as detailed in the plaint to the plaintiff for the amount due on the promissory note, d. 11th January 1931 with interest at the contract rate and terms from the date of suit to that of payment together with costs within a time to be fixed by the Court; in default to pass a final decree for sale of the property detailed in the schedule, the decree being in terms of Form No. 11, Appendix D of the C.P.C. The suit was resisted principally by the appellant herein. He put forward several contentions, such as, that Ex. A.1 mortgage was not supported by consideration, that there was a partnership between Chidambaram Chettiar and the first defendant and it was only with reference to that partnership, the promissory note for Rs. 25,000/- was executed by the first defendant in favour of Chidambaram Chettiar; that some property was purchased in the name of Chidambaram Chettiar by the first defendant for Rs. 40,000/- which was subsequently sold by Chidambaram Chettiar for a sum of Rs. 1 lakh; that thereby Chidambaram Chettiar made a profit of Rs. 60,000/- which, in any event, was sufficient to discharge the amount due by the first defendant to Chidambaram Chettiar, that consequently Chidambaram Chettiar himself had no right to claim any amount from the first defendant; and that therefore the mortgage created by defendants 3 to 7 in favour of the plaintiff was not supported by consideration and that no amount was due to the plaintiff. Subsequently, he filed an additional statement raising a new contention. Based upon these pleadings, the trial Court framed the following issues; (1) Is the suit mortgage d. 30th November 1939 true, valid and supported by consideration and binding on the defendant? (2) Is the mortgage discharged as pleaded by the 2nd defendant? Subsequently, he filed an additional statement raising a new contention. Based upon these pleadings, the trial Court framed the following issues; (1) Is the suit mortgage d. 30th November 1939 true, valid and supported by consideration and binding on the defendant? (2) Is the mortgage discharged as pleaded by the 2nd defendant? (3) Is the suit barred by limitation as against a half share of the (4) Is the 2nd defendant not entitled to the benefits of Madras Act IV of 1938? (5) To what equities, if any, are defendants 8 and 10 entitled? (6) Whether the properly purchased by the 9th defendant is not liable to be proceeded against for the suit claim? (7) To what relief is the plaintiff entitled? Additional Issue: (1) Is the plaintiff not entitled to sue on the original mortgage bond dated 30th November 1939 without a registered assignment deed in its favour? The learned Subordinate Judge of Thanjavur, who tried the suit, came to the conclusion that the suit mortgage, Ex. A.1 d. 30th November, 1939, was true, valid and supported by consideration and was binding on the second defendant. The learned trial Judge found against the case of the second defendant with regard to the partnership, the alleged discharge of the mortgage as well as the contention that the suit was barred by Limitation and the second defendant was an agriculturist. With reference to the additional issue, the learned trial Judge, following a decision of a Full Bench of this Court in Chinnah Goundan and others v. Subramania Chettiar and another A.I.R. 1959 Mad. 246 held that without any deed of assignment in its favour, the plaintiff was entitled to institute the suit in question with reference to the original mortgage itself. In the result, the suit was decreed as prayed for and defendants 3 to 7 were declared to be entitled to the surplus, if any, towards the discharge of their debt under Ex. A.1. It was further decreed that the balance should go to defendants 8 and 10 and the further surplus would go to the mortgagors. It is against this judgment and decree that the present appeal has been preferred by the second defendant in the suit. 2. Mr. S. Rajagopalan, learned counsel for the appellant, raised three contentions before us, namely, (1) Ex. It is against this judgment and decree that the present appeal has been preferred by the second defendant in the suit. 2. Mr. S. Rajagopalan, learned counsel for the appellant, raised three contentions before us, namely, (1) Ex. A.1, mortgage was not supported by consideration and the same is not binding on the appellant; 12) there had been no valid equitable mortgage created by defendants 3 to 7 in favour of the plaintiff-Bank, since Exts. A-10 and A.11 required registration and they had not been registered; and (3) the plaintiff could not institute a suit on the original mortgage, Ex. A-1, d. 30th November 1939, without there being a registered assignment of the said mortgage in its favour. We shall consider these points seriatim. As far as the first point is concerned, it is necessary to refer to the items of consideration which constituted the debt due under the mortgage. The consideration consisted of three items, namely, (1) a sum of Rs. 15,000/- due to one Maruthappa Pillai of Karunthattangadi towards a promissory note, d. 9th January, 1938, marked as Ex. A-2 and a security, bond d. 20th January, 1935, marked as Ex. A.13, executed by the first defendant (2) a sum of Rs. 25000/- due to Chidambaram Chettiar on a promissory note executed by the first defendant on 13th August 1939, namely. Ex. A-3, and (3). a cash consideration of Rs. 20,000/- received by the first defendant at the time of executing Ex. A.1 mortgage, for discharge of his antecedent debts and for family expenses, 3. As far as the first item of consideration is concerned, as we have already pointed out, Ex. A-2 is the promissory note executed by the first defendant in favour of Maruthappa Pillai and Ex. A.13 is the registered security bond executed by the fist defendant in favour of Maruthappa Pillai. The mortgage deed, Ex. A.1 directs the mortgagee Chidambaram Chettiar to discharge the amounts due to Maruthappa Pillai. The endorsement d. 21st April 1941 shows that a sum of Rs. 17,948-6-0 was received by Maruthappa Pillai and a cancellation was given of the promissory note as well as the security bond ex cuted by the first defendant. Ex. A-14, being the endorsement of discharge signed by Maruthappa Pillai. With regard to the actual execution of the promissory note, Ex. 17,948-6-0 was received by Maruthappa Pillai and a cancellation was given of the promissory note as well as the security bond ex cuted by the first defendant. Ex. A-14, being the endorsement of discharge signed by Maruthappa Pillai. With regard to the actual execution of the promissory note, Ex. A-2 and the passing of consideration, thereunder, P.W. 2, a resident of Karuthattangudi, has given evidence. He has attested the promissory note, Ex. A-2, in favour of a Maruthappa Pillai. As a matter of fact, he stated that it was he who recommended to Maruthappa Pillai to advance the loan to the first defendant. P.W. 7 has attested Ex. A.15, a registered release deed executed by Maruthappa Pillai on 23rd April 1941 in favour of Chidambaram Chettiar releasing his rights under Ex. A-13. Consequently, the execution of the promissory note, Ex. A.2, as well as the passing of consideration and the discharge of that promissory note debt by Chidambaram Chettiar, the mortgagee under Ex. A.1, have been fully established. 4. With regard to the second item of consideration, namely, the promissory note executed by the first defendant in favour of Chidambaram Chettiar under Ex. A-3, d. 13th August 1939, P.W. 1, an attestor to the said promissory note has been examined and he has deposed to the execution of the promissory note by the first defendant and the passing of consideration thereunder from Chidambaram Chettiar to the first defendant. The mortgage deed directs Chidambaram Chettiar to adjust the said sum of Rs. 25000/- towards the amount due to him under Ex. A-3. Consequently, the reality of the debt under Ex. A-3 promissory note as well as the discharge pursuant to the mortgage have been established. 5. Then, there remains the last item of consideration of Rs. 20,000/- which, according to the recitals of Ex. A.1, was received by the first defendant for discharging his antecedent debts as well as for family expenses. The receipt of Rs. 20,000/- by the first defendant on the date of the execution of Ex. A.1 has been spoken to by P.W. 1 himself. He has stated that it was he who took the money from Chidambaram Chettiar for payment to the first defendant at his house at Pallagraharam, on his executing Ex. A.1 mortgage deed. Therefore, the payment of Rs. 20,000/- by the first defendant on the date of the execution of Ex. A.1 has been spoken to by P.W. 1 himself. He has stated that it was he who took the money from Chidambaram Chettiar for payment to the first defendant at his house at Pallagraharam, on his executing Ex. A.1 mortgage deed. Therefore, the payment of Rs. 20,000/- by Chidambaram Chettiar to the first defendant on the date of the execution of the mortgage has also been proved. 6. Then, the question for consideration is, whether these items of consideration can be said to be binding on the appellant herein so as to make the mortgage itself binding on him. Irrespective of any other consideration, as far as the amount due to Maruthappa Pillai under Ex. A-2 promissory note and the amount due to Chidambaram Chettiar under Ex. A.3 promissory note are concerned, they will certainly constitute antecedent debts of the first defendant and therefore to that extent, the mortgage will be binding on the appellant. That leaves the question as to whether the mortgage will be binding with reference to the sum of Rs. 20,000/- received in cash by the first defendant on the date of Ex. A.1. As we have pointed out already, the mortgage deed recites that the said amount was received by the first defendant for discharging his antecedent debts as well as for family expenses. There is no evidence to show, what portion of the amount was utilised for the discharge of the antecedent debts and what portion of the amount was spent towards the family expenses of the first defendant. Mr. Rajagopalan, learned counsel for the appellant, repeatedly contended that there is a finding of the trial Court that the cinema business was not Kulachara of the first defendant and there is evidence to show that the first defendant started his cinema business, which ended in a loss. However, there is absolutely no evidence to show that the said sum of Rs. 20,000/- borrowed by the first defendant from Chidambaram Chettiar was utilised for the cinema business. Only if that amount is proved to have been utilised for the cinema business, there will be scope for argument that the amount having been borrowed for a business which is not a family business, the said debt cannot be said to be binding on the appellant. Only if that amount is proved to have been utilised for the cinema business, there will be scope for argument that the amount having been borrowed for a business which is not a family business, the said debt cannot be said to be binding on the appellant. The appellant in his evidence has stated that the cinema business was started in 1942 or 1943; that he is not definite and that it lasted till 1949 or 1950. The mortgage being in 1939 and the amount having been borrowed in 1939 itself, unless there is specific evidence to show that that amount was retained by the first defendant till he started the cinema business in 1942 or 1943 and was utilised in the said cinema business, it is not possible to hold that the said sum of Rs. 20,000/- was borrowed and utilised for the said cinema business which is not the kulachara of the family, and therefore the said debt would not be binding on the appellant herein. On the other hand, as we have pointed out already, there is a specific and clear recital in Ex. A-1 itself to show that the said sum of Rs. 20,000/- was received by cash by the first defendant for the discharge of his antecedent debts and for family expenses. If that recital is true, certainly the appellant will be bound by the mortgage to the entire extent. The mortgage deed being of the year 1939 and Chidambaram Chettiar having died by the time the suit was instituted, the only other person who could have given any evidence with regard to the circumstances under which the sum of Rs. 20,000/- was received by the first defendant was the first defendant himself, who, for reasons best known to himself, avoided the Court and did not give any evidence in this behalf. Having regard to the long lapse of time between the execution of Ex. A.1 and the date of the suit, prima facie the conclusion is that the recital contained in Ex. A.1, is a true recital. Certainly, it is open to the appellant herein to establish that the said recital is a false one by specific evidence. There is absolutely no such evidence in this case. A.1 and the date of the suit, prima facie the conclusion is that the recital contained in Ex. A.1, is a true recital. Certainly, it is open to the appellant herein to establish that the said recital is a false one by specific evidence. There is absolutely no such evidence in this case. Apart from this, it should be remembered that the obligation imposed by law on an alienee is to make bona fide enquiries as to the necessity for the alienation and not to see to the application of the money actually lent or paid by him. In this particular case, there is the promissory note executed in favour of Maruthappa Pillai as well as the promissory note executed in favour of the mortgagee himself, which were discharged by the execution of the mortgage. Therefore, the mortgagee would have reasonably and bona fide believed the representation made by the first defendant and the recital contained in Ex. A-1 to the effect that he was receiving the cash consideration of Rs. 20,000/ for payment of his antecedent debts and family expenses. Under these circumstances, we hold that the entire mortgage Ex. A.1 is binding on the appellant as well as his father, the first defendant. Hence there is no substance in the first point. 7. As far as the second point urged by the learned counsel for the appellant is concerned, that will depend upon the language of Exts. A.10 as well as Ex. A.11. Before proceeding to deal with that language, we shall refer to the legal position in this behalf: 8. A mortgage by deposit of title deeds does not require any writing and being an oral transaction is not affected by the law of Registration. But it is usual for the deposit to be accompanied by a memorandum in writing. If this writing is the contract of mortgage so that it creates the mortgage it must be registered and oral evidence to contradict it is inadmissible. But registration is not necessary if the mortgage is complete without the writing, and the writing is merely a statement that the mortgage has been effected or a statement of facts from which the contract of mortgage can be inferred. But registration is not necessary if the mortgage is complete without the writing, and the writing is merely a statement that the mortgage has been effected or a statement of facts from which the contract of mortgage can be inferred. It is in view of this alone, the Supreme Court in Rachpal Mahraj v. Bhagwandas Daruka has sated 1950 S.C.R. 548 at 551-63 L.W. 1025 as follows:— “The crucial question is: Did the parties intend to reduce the bargain regarding the deposit of title deeds to the form of a document? If so the document requires registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by the implication of the law from the deposit itself, with the requisite intention, and the document itself being merely evidential does not require registration”. Consequently, the necessity for registration depends upon the construction of the memorandum in the light of the surrounding circumstances. 9. It is against this background alone, we refer to the language of Exs. A.10 and A.11. As we have pointed out already, Ex. A.10 is a communication dated, 3rd February 1953 addressed by the Secretary of the plaintiff-Bank to the fourth defendant. That states: “Dear Sir, We have this day received the following documents deposited by you as security towards the dues of late Mr. P. RM. RMS. Sithambaram Chettiar:— ‘Mortgage deed executed by Messrs V. Neelamegham Pillai, N. Kandaswamy Pillai for self and as guardian of Minor Ambalavanan in favour of Mr P. RM. RM. ST. Sithambaram Chettiar and registered as Document No. 1616 of 1939 in Book No. 1 pages 376 to 383 on 8th December 1939 in Karunthattngudi Sub-Registrar office.’—Yours faithfully, Sd. Secretary.” Ex. A.11 dated 4th February 1953 is a communication sent by defendants 3 to 7 addressed to the Agent, Bank of Madura, Ltd., Pudukottai and the same is as follows: “Dear Sir, Late Mr. P. RM. RM. ST. Sithambaram Chettiar had borrowed from the Bank Rs. 1,90,000/- Rupees One Lac and ninty thousand only) and we are liable to pay the amount as his legal heirs and representatives and Rs. P. RM. RM. ST. Sithambaram Chettiar had borrowed from the Bank Rs. 1,90,000/- Rupees One Lac and ninty thousand only) and we are liable to pay the amount as his legal heirs and representatives and Rs. 1,78,694-7-0 (Rupees one lac, seventyeight thousand six hundred and ninetyfour and annas seven only is due to the Bank on that Account as on 3rd February 1953. We have further, for that purpose deposited yesterday the following documents and title deeds in Madura with your Head Office with intent to create an equitable Mortgage as already agreed to between us and the Bank:— ‘Mortgage deed dated 30th November 1939 executed by Messrs. V. Neelamegham Pillai, N. Kandaswamy Pillai, for self and as guardian of minor Ambalavanan in favour of Mr. P. RM. RM. ST. Sithambaram Chettiar and registered as Document No. 1616 of 1939 in Book No. 1 pages 376 to 383 on 8th December 1939 in Karunthattangudi Sub-Regis-grars Office. Yours faithfully, Sd. SITHA Meenakshi, S. Raman, S. Lakshmanan, S. Raman as guardian for Minors Murugappan and Natarajan”. A perusal of these two documents clearly shows that on 3rd February 1953 the mortgage deed, Ex. A.-1 was deposited by defendants 3 to 7 with the Bank at Madurai as security for the dues of late Chidambaram Chettiar to the Bank. Consequently, the transaction of creating a mortgage, namely, depositing of the title deeds with intent to create a security thereon for the debts due by Chidambaram Chettiar, to the Bank had already taken place, that is, prior to the writing of Ex. A.-10 itself on 3rd February 1953. This is made amply clear by the language in Ex. A.-10. Further it has to be noticed that Ex. A.-10 has been signed only by the Secretary of the Bank and not by defendants 3 to 7. It is only Ex. A.-11 which has been signed by defendants 3 to 7 (the fourth defendant signing as guardian for defendants 5 and 6 who were minors at that time). In view of this alone, Mr. Rajagopalan contended that Ex. A-10 and A.-11 must be read together and if they are so read, they would constitute one transaction signed by defendants 3 to 7, and therefore the same required registration. In support of his contention, the learned counsel relied on three decisions. 10. In view of this alone, Mr. Rajagopalan contended that Ex. A-10 and A.-11 must be read together and if they are so read, they would constitute one transaction signed by defendants 3 to 7, and therefore the same required registration. In support of his contention, the learned counsel relied on three decisions. 10. The first decision is C. Jagannadham Pillai v. The Official Assignee, Madras and others 60 M.L.J. 300- 32 L.W. 666. The Head note to that decision on which reliance is placed, is: “Where a promissory note was executed by a person on the 25th May 1923, for a certain amount, and he executed on the following day (26th) an agreement to deposit title-deeds and on the 27th he sent the title-deeds with a letter whose wording was as follows: ‘I have the honour of herewith sending you with the intention of delivering and depositing the same with you as per the memorandum, dated the 26th May 1923, executed by me in your favour the title-deeds and papers relating to the property ’ and ref erred to in the schedules annexed to the letter, the question to be decided in order to discover Whether or not the mortgage was valid, was whether the letter required registration as embodying a bargain between the parties. Held: that, since the letter made reference to the memorandum of agreement of the previous day, the two documents must be read together, and, when so, read, they constituted a document within the terms of S. 17 of the Indian Registration Act, and therefore, the mortgage was invalid for want of registration.” It will be immediately seen that the extract from the letter itself makes it clear that the depositing of the title deeds and the writing of the letter were contemporaneous, and independent of the letter there was no creation of a mortgage, and therefore, it was held by the Court that the letter made reference to the memorandum of agreement of the previous day and the two documents must be read together, and when so read, they constituted a document within the terms of S. 17 of the Indian Registration Act, and therefore the mortgage was invalid for want of registration. From the language of Ex. A.10 and A.11 in the present case, it will be seen that that decision has no application to the facts of the present case. 11. From the language of Ex. A.10 and A.11 in the present case, it will be seen that that decision has no application to the facts of the present case. 11. The next decision relied on by the learned counsel for the appellant is Modern Housing Construction and Properties, Limited, by Director v. The Alagappa Textiles (Cochin), Ltd. (1972) 2 M.L.J. 319 L.W. 251 (D.B.). The relevant portion of Ex. P.3 in that case was: “Besides, I, Dr. R.M. Alagappa Chettiar hand over to you my title deeds relating to the guest house by way of further security in respect of the aforesaid liability.” The relevant portions of subsequent memoranda, Ex. P. 7 and P. 42 in that case were: “I hereby agree that the title deeds of house property already deposited with the Company will remain with them as collateral security for the above promissory note until it is fully discharged.” After pointing out that the real test to find out whether a memorandum requires registration or not, is to ascertain whether the memorandum represents the bargain between the parties, the Bench held that the language of the aforesaid documents, namely, Ex. P. 3, P. 7 and P. 42 left no room for doubt that the memoranda, Ex. P.-7 and P.-42 required registration. As we have pointed out already, whether a particular document requires registration as constituting the entire bargain between the parties will depend upon the construction of that document and the terms of that document, and having regard to the language in Ex. A.-10 and A.-11 in the present case, we are of the opinion that the said decision has no application to the facts of the present case, since the language of Ex. A.10 and All does not show that the parties intended that the said communications alone should constitute the bargain between the parties as constituting the contract. 12. The last decision is that of the Supreme Court in Veeramachineni Gangadhara Rao v. The Andhra Bank Ltd., and others A.I.R. 1971 S.C. 1613. Reliance was placed on the proposition of law referred to in paragraph 17 at page 1619. The Supreme Court in that paragraph merely referred to and relied on its own decision in the earlier case which we have already referred to, and extracted the proposition of law laid down by the Court in that decision in the said paragraph. Reliance was placed on the proposition of law referred to in paragraph 17 at page 1619. The Supreme Court in that paragraph merely referred to and relied on its own decision in the earlier case which we have already referred to, and extracted the proposition of law laid down by the Court in that decision in the said paragraph. Consequently, this decision does not throw any further light on the question before us. 13. Having regard to the language of Ex. A. 10 and A.11, which we have already extracted, we are clearly of the opinion that the said two documents did not constitute the bargain between the parties, and the contract between the parties bad already been constituted when Ex. A.1 was deposited by defendants 3 to 7 with the plaintiff-Bank at its Head Office at Madurai and Ex. A.10 and A.11 merely made a reference to a transaction already completed and they did not themselves bring into existence the mortgage created by defendants 3 to 7 in favour of the Bank. Hence, we hold that there is no substance in this point also. 14. Then, there remains the last point raised by the learned counsel and that requires the consideration of two aspects. One is, in what manner a sub-mortgage, as has been created by defendants 3 to 7 in favour of the plaintiff, can be created in law, and the second is, whether a sub-mortgagee, namely, the plaintiff-Bank can institute the present suit for taking of accounts between the original mortgagor and the mortgagee. As has been very pithily put in Fisher and Lightwoods “Law of Mortgage”, Eighth Edition at page 219: “A sub-mortgage is a mortgage of a mortgage.” 15. A Full Bench of this Court in Chinnah Goundan and others v. Subramania Chettiar and another A.I.R, 1959 Mad. 246; 72 L.W. 149 (F.B.), to which we have already made a reference, pointed out as follows: “A debt secured by a mortgage being the property of the mortgagee, he can, in his turn assign or create a security over it. If he choses to create a mortgage over it, such a mortgage is called a sub-orderivate mortgage. The sub-mortgagee will have the security of the mortgage right created by the original mortgagor for the payment of his debt. In relation to the sub-mortgage, the mortgagee will be the mortgagor. If he choses to create a mortgage over it, such a mortgage is called a sub-orderivate mortgage. The sub-mortgagee will have the security of the mortgage right created by the original mortgagor for the payment of his debt. In relation to the sub-mortgage, the mortgagee will be the mortgagor. He will therefore have a right to pay off his debt and redeem the property.” It is settled that the interest of a mortgagee in the mortgaged property is itself an immovable property. Consequently, all the provisions of law applicable to the creation of an original mortgage will be available and apply to the creation of a sub-mortgage by a mortgagee Therefore, there is nothing in principle to militate against a mortgagee creating a sub-mortgage of his interest in the mortgaged property by depositing the title deed, which in the present case is the registered mortgage deed execute d in his favour, namely, Ex. A.1. However, if the original mortgage itself is a mortgage by deposit of title deeds, a sub-mortgage can be created by the mortgagee re-deposing the title deeds with the sub-mortgagee. It is this position that has been stated in Fisher and Lightwoods “Law of Mortgage”, Eighth Edition at page 220 as follows: “An equitable sub-mortgage may be made by deposit of the mortgage deed or, where the principal mortgage Is an equitable mortgage, by re-deposit of the deposited title deed or deeds, with or without an accompanying memorandum.” 16. The earliest decision which had to consider this question was that of the Calcutta High Court in Gokul Dass v. Eastern Mortgage and Agency Company I.L.R. 33 Cal. 410. In that case, the parties referred to as Roys, sometime before June 1893 mortgaged for a sum of Rs. 3,35,000/- in favour of one Dhanpat Singh. On the 3rd June 1893 he said Dhanpat Singh deposited the mortgage deeds with Gokul Dasss agent in Calcutta as security for his debts due to Gokul Das. On 19th June 1893 Dhanpat Singh wrote a letter to the agent of Gokul Dass, which after reciting the amount of the debt contained amongst others, the following clauses: “That I shall pay him one-fourth of Rs. 70,000/ within a fortnight, one-fourth by promissory note payable six months from date, and the remaining half by a promissory note payable within a year. 70,000/ within a fortnight, one-fourth by promissory note payable six months from date, and the remaining half by a promissory note payable within a year. In the meantime and until payment of the claim in full of Raja Gokul Dass, you will hold as agent for him the mortgage kist bondi dated 25th Falgun 1292, executed in my favour by Babu Bhagabatty Charan Roy and others as enumerated below, which I have already made over to you as such agent aforesaid as a security for the due payment of the said debt, not to be parted with by you without mutual consent of myself and Raja Gokul Dass or under an order of Court.” The question for consideration was, whether the letter dated 19th June 1893 required registration and whether there had been a valid creation of a sub-mortgage by depositing the original mortgage deed. The Calcutta High Court held that on 3rd June 1893, when the mortgage deed was deposited, there was a concluded contract and a valid mortgage under S. 59 of the Transfer of Property Act and the communication dated 19th June 1893, did not require registration under S. 17 of the Registration Act. The Court pointed out: “The letter of the 19th June speaks of the sub-mortgage as having been already made and was written by Dhanpat Singh at the suggestion of the pleader Srishchandra Chowdhuhury as an admission by him that this sub-mortgage had been created. Reliance has been placed upon a passage in the letter that the deeds were not to be parted with without the mutual consent of himself and the plaintiffs or under an order of the Court. It is said that this shows that Dhanpat Singh still retained control over the deeds, but it is clear that this is not what was intended. It was probably only meant that the plaintiffs were not to part with the deeds without giving Dhanpat Singh an opportunity of paying off their debt, and getting them back as the debt of the Roys to him was too much greater than his debt to the plaintiffs. It was probably only meant that the plaintiffs were not to part with the deeds without giving Dhanpat Singh an opportunity of paying off their debt, and getting them back as the debt of the Roys to him was too much greater than his debt to the plaintiffs. We entirely agree, therefore, with the Subordinate Judge in holding that a good equitable sub-mortgage was created in favour of the plaintiffs on the 3rd June, 1893, that the object of the letter of the 19th June 1893, was not to constitute the contract between the parties; but was written with the object and for the purpose we have stated, and that, consequently it did not require registration, under S. 17 of the Registration Act.” 17. In U Thit v. U. Paw 1 and Others A.I.R. 1935 Rangoon 483 the Court pointed out that if a mortgage can be made under S. 58 (f), Transfer of Property Act, by deposit of title deeds, so naturally, can a sub-mortgage be made in the same way, for there is no difference whatever between the original creation of a mortgage and the assignment of that mortgage by way of sub-mortgage; both are mortgages of immovable property. That was also a case in which a sub-mortgage was created by deposit of title deeds and the question that came to be considered was whether that was sufficient to create a valid sub-mortgage. The Court held that for the reasons referred to above that constituted the creation of a valid sub-mortgage. 18. The decision of Rangoon High in Maunga Vhaung v. H.M.K. Chettiar Firm and others A.I.R. 1936 Rangora 366 is directly in point. That was a case where the original mortgage was by a registered instrument. The mortgagee created a sub-mortgage by depositing the mortgage deed. The question for consideration was whether the said Sub-mortgage was valid in law or did it require a separate document. The point raised before the Court was referred to it the judgment as follows: “The point of law that is now raised is that the sub-mortgage not having been created by a registered deed was void in law.” The Court referred to its earlier judgment in First Appeal No. 178 of 1934 and relied on the following passage in that Judgment: “A mortgage of immovable property is itself an interest in immovable property and can be itself mortgaged. The transaction is called a sub-mortgage. It would appear prima facie that such a sub-mortgage can be made by deposit of title-deeds in exactly the same way as an original mortgage can. Admittedly in England (where the corresponding terms are ‘equitable mortgage’ and ‘sub-mortgage’) equitable sub-mortgages of equitable mortgages can be made, Smith v. Hildyard Exparte I can see no reason why a sub-mortgage by deposit of title deeds in the case where the original mortgage has been by deposit of title deeds should not be valid. This appears to be clearly in accordance with law, nor as any reason of practice or convenience been argued against it”. After extracting the above passage in the earlier judgment, the Court in that case proceeded to make the following observation, which is directly in point and significant: “This case is stronger than that case because in the present case the original mortgage, that is, the mortgage created by the appellant in favour of Moung Mya and Ma Kha, was by a registered deed. The registered deed thus became, so to speak, the document of title to whatever interest Maung Mya and Ma Kha had in the suit property and they could quite validity create a mortgage of that interest by the deposit of that registered deed. That is what they have actually done in this case.” We are clearly of the opinion that the conclusion of the learned Judge in that case, if we may say so with respect, correctly represents the legal position and it directly applies to the facts of the present case. 19. The decision in First Appeal No. 178 of 1934 referred to and relied on in the above decision has been reported as Gurnam Kaur v. R.K. Banerjee and others II. L.J.K.B. 16 which dealt with a case of a sub-mortgage by deposit of title deeds, where the original mortgage itself was by deposit of title deeds. 20. Then, there is a decision of this Court in S. Rm. M. Rm. Ramanathan Chettiar and another v. H.H. Maharana Sri Dowlat Singjee Thakore Sahib. Limbdi and others A.I.R. 1937 Rang. 69. In that case, a bench of this Court after referring to the decision of the Rangoon High Court in Gurnam Kaur v. R.K. Banerjee and others II. L.J.K.B. 16 referred to above pointed out: We entirely agree with the above opinion of the learned Judge. Limbdi and others A.I.R. 1937 Rang. 69. In that case, a bench of this Court after referring to the decision of the Rangoon High Court in Gurnam Kaur v. R.K. Banerjee and others II. L.J.K.B. 16 referred to above pointed out: We entirely agree with the above opinion of the learned Judge. If in law a mortgagees interest in property can be created by the mere deposit to him of title deeds of the mortgage, we see no reason why the mortgagees interest thus created cannot be sub-mortgaged by depositing the very title deed, the deposit of which with him created his interest in the property. We cannot find anything in S. 58 Cl. (f) T.P. Act, against the validity of an equitable sub-mortgage of a mortgage created by deposit of title deeds. In England there never was a doubt about the validity of such a sub-mortgage. In our opinion the suit sub-mortgage is true and valid in law. 21. The principles laid down in the above decisions make it absolutely clear that defendants 3 to 7 in the present case created a valid sub-mortgage in favour of the plaintiff by depositing, Ex. A.1. mortgage deed in favour of Chidambaram Chettiar, which was the title deed of the mortgagee with regard to his interest in the mortgaged property. 22. That takes us on to the second aspect of the matter, namely, whether the plaintiff can institute the present suit with reference to Ex. A.1 mortgage itself. 23. The earliest case concerning the position of a mortgagor, a mortgagee and a sub-mortgagee came to be considered by the Bombay High Court in Narayan Vithal Maval v. Ganoji andothers I.L.R. 15 Bom. 692. That related to a suit for redemption of land which had been sub-mortgaged by the mortgagee, in which suit the sub-mortgagees were co-defendants, and the mortgagee prayed for an account to be taken of the sub-mortgage. The question was, whether such a prayer could be granted. The Bombay High Court pointed out: “We think that this claim of the mortgagee is well founded, and that the case must be remanded for an account of the sub-mortgage to be taken. This is the course followed in England. The question was, whether such a prayer could be granted. The Bombay High Court pointed out: “We think that this claim of the mortgagee is well founded, and that the case must be remanded for an account of the sub-mortgage to be taken. This is the course followed in England. In the case of a derivative mortgage or sub-mortgage, the judgment directs an account of what is due to the original mortgagee or his assignee, and then of what is due to the derivative or sub-mortgagee and that upon payment to the latter of the sum due to him, not exceeding the sum found due to the original mortgagee, and on payment of the residue, if any, of what is due to the original mortgagee, both of them shall recovney to the mortgagor.’, 24. In Muthu Vijaya v. Venkatachellam Chetty I.L.R. 20 Mad. 35, this Court stated: “The original mortgagor and the sub-mortgagee, as the holders of different interest in one and the same specific property, stand to one another in a relation that gives rise to certain rights and duties inter se . It is admitted that a mortgagor whose right to redeem originally existed as against the mortgagee alone becomes by virtue of the sub-mortgage entitled to exercise that right as against the sub-mortgagee also, who consequently, must be made a party to redemption proceedings. Now, as the sub-mortgagee may be redeemed by the original mortgagor, it ought to be held that the former may fore close the latter, where that relief can be claimed, or where such relief cannot be granted, he may obtain an order for sale and thereby put an end to the other partys right to redeem. For it is only just and reasonable that whilst the law, on the one hand, recognises a right in the original mortgagor to redeem the sub-mortgage, it should give the latter, as against the former, the generally correlative right.” The same view was reiterated by this Court in Moideen Pichai v. Nagoore Meera (1937) 2 M.L.J. 536 ; 46 L.W. 367 (D.B.). In that case, a sub-mortgagee sued for sale of the property impleading both the mortgagor and the mortgagee. The Court decreed the suit on the claim in the sub-mortgage which was smaller than the amount due on the mortgage. The mortgagee thereafter filed this suit on the mortgage. In that case, a sub-mortgagee sued for sale of the property impleading both the mortgagor and the mortgagee. The Court decreed the suit on the claim in the sub-mortgage which was smaller than the amount due on the mortgage. The mortgagee thereafter filed this suit on the mortgage. It was held that the causes of action for the two suits were different and that the decision in the former suit would not operate as res judicata in regard to the latter suit. 25. In Vellayan Chettiar v. Mahaiinga 1938 (1) M.L.J. 171 this Court pointed out: “Ordinarily a sub-mortgagees right just like any other mortgagee is to enforce his mortgage and bring to sale the property mortgaged to him, that is, the interest of the mortgagee in the property mortgaged to the latter. But the law permits him to enforce sale of his said property under circumstances and conditions which would entitle the original mortgagee to bring the properties to sale. To such a suit the original mortgagor should be made a party. The principle on which this is allowed is that a sub-mortgagees claim is by a derivative title from the mortgagee and he is in fact an assignee of the mortgagee. When the mortgagee effects a mortgage of his mortgage interest he is creating a transfer of his rights as mortgagee though not absolutely. Therefore when a sub-mortgagee sues for sale of the property he is enforcing right of the original mortgagee.” 26. In Vengannan Chettiar and Sons v. Ramaswami Pillai I.L.R. 1944 Mad. 104 originally a sub-mortgagee filed a suit impleading both the mortgagee and mortgager praying for sale of the mortgaged property. The plaint was sought to be amended by abandoning the relief as to sale of the property and restricting it to sale of the mortgage right. A Bench of this Court held that the amendment seeking a different relief was based on the same cause of action, namely, the sub-mortgage. This Court observed: “A sub-mortgagee has two courses open to him. He can, if he wishes, limit his suit to the sub-mortgagor, in which case he only asks for the sale of the sub-mortgagors interest in default of payment of the decretal amount. On the other hand, he may join the original mortgagor and ask for a decree for the sale of the mortgaged property in default of payment. He can, if he wishes, limit his suit to the sub-mortgagor, in which case he only asks for the sale of the sub-mortgagors interest in default of payment of the decretal amount. On the other hand, he may join the original mortgagor and ask for a decree for the sale of the mortgaged property in default of payment. In this case the relief to which he is entitled is to be gathered from Form No. XI in Appendix D to the Civil Procedure Code.” All these cases were considered by a Full Bench of this Court in Chinnah Goundan and others v. Subramania Chettiar and another A.I.R. 1959 Mad. 246; 72 L.W. 148 (F.B.) referred to already. The Full Bench, after observing what we have already extracted, pointed out: “There will be a corresponding right in the sub-mortgagee to sue on the sub-mortgage and to enforce the sub-mortgage as against the security that is, the mortgage right. In neither of these proceedings will the mortgagor be interested. Or. 34, R. 1, C.P.C. states that all persons interested in the mortgage security or in the right of redemption should be joined in a suit relating to a mortgage. In a sub-mortgage the only person interested in the mortgage security is the sub-mortgagee and the person interested in the right of redemption would be the mortgagee. The mortgagor will not be a necessary party to either of the suits mentioned above. The mortgagor who has a right to redeem his mortgage cannot be deprived of his right to redeem by the creation of a sub-mortgage by his mortgagor. The redemption of the mortgage will put an end to the sub-mortgage and the sub-mortgagee being a person interested in the mortgage right would be a necessary party to a suit for redemption by the mortgagor. The sub-mortgagee who, to a limited extent, is an assignee of the mortgage right will have a corresponding right to sue the mortgagor by reason of his derivative title. In enforcing his sub-mortgage he can bring to sale the properties mortgaged to his mortgagor, viz, the mortgagee, instead of merely bringing to sale the interest of the latter. The sub-mortgagee who, to a limited extent, is an assignee of the mortgage right will have a corresponding right to sue the mortgagor by reason of his derivative title. In enforcing his sub-mortgage he can bring to sale the properties mortgaged to his mortgagor, viz, the mortgagee, instead of merely bringing to sale the interest of the latter. In such a case the form of the decree would be to direct an account being taken between the mortgagee and the mortgagor and also between the sub-mortgagee and the mortgagee, and declare their respective rights in the sale proceeds of the mortgaged property.” This is what exactly the plaintiff has prayed for in the present suit and a decree has been granted by the trial Court. The principle underlying the above decision is this: “The rights of the sub-mortgagee as against his mortgagor, and as against the original mortgagor are, though arising out of the same transaction, distinct and based on different legal grounds. As against his mortgagor, the rights of the sub-mortgagee, are based on contract, the mortgage being a security for the loan advanced to the mortgagor. It is open to the sub-mortgagee, in enforcement of this right to proceed against the mortgage interest belonging to his mortgagor, and to such a suit the original mortgagor is not a necessary party. But the sub-mortgage also operates as an assignment of the mortgage interest of his mortgagor, and by reason of this privity of estate, he has certain rights and obligations as against the original mortgagor. The original mortgagor can redeem the mortgage created by him, and on such redemption the sub-mortgage which is dependent on it, must also come to an end. Conversely, the sub-mortgagee can in his character, as assignee of the interest of his mortgagor, proceed against the property for the satisfaction of his claim, and to such a suit, the original mortgagor is a necessary party. Both these remedies are open to the sub-mortgagee but they are distinct and alternative.”—(Mulla on the Code of Civil Procedure, Vol. II, 13th Edition, p. 1432). 27. Both these remedies are open to the sub-mortgagee but they are distinct and alternative.”—(Mulla on the Code of Civil Procedure, Vol. II, 13th Edition, p. 1432). 27. Thus, when a sub-mortgagee claims such a relief he does not claim the relief as the assignee of the original mortgage, but only as a derivative or sub-mortgagee by reason of privity of estate referred to above, and therefore there is no substance in the contention of the learned counsel for the appellant that the sub-mortgagee, namely, the plaintiff in the present case cannot ask for such a relief without obtaining a registered assignment of the original mortgage. The decree passed by the Trial Court is fully In accordance with the law laid down by the above Full Bench decision. Consequently, we hold that, there is no substance in this point also. 28. No other point was urged before us. 29. It is represented to us that the fifth respondent in this appeal is dead and no steps have been taken to bring his legal representatives on record. Since we are dismissing the appeal itself on merits, it is unnecessary to say anything more in this behalf. 30. Under these circumstances the appeal fails and is dismissed with costs of the plaintiff-1st respondent.