Judgment :- Ramakrishnan, J. State Bank of Travancore, the sole plaintiff in O.S.No. 88 of 1982, Sub Court, Kottayam is the appellant in this appeal. Defendants 5 and 6 arc respondents 1 and 2 in the appeal and they alone arc contesting the appeal. Firs! defendant is the third respondent in the appeal. The other respondents arc defendants 2, 4 and the legal representatives of the third defendant who died pending appeal. 2. The main question to be considered in the appeal is whether the lirst defendant has created a valid equitable mortgage in favour of the Bank by depositing Ext. A6. duplicate of the partition-deed dated 30-10-1971 whereby she was allotted the plaint schedule 5 items of immovable properties in 'C' schedule attached to it? 3. Brief facts necessary for deciding the above question are thus: First defendant had availed a loan from the Bank in 1976. According to the plaintiff-Bank on 28 -4-1976 as a collateral security, the first defendant deposited Ext. A6 document as title deed of her properties scheduled to the plaint. She also executed Ext. A5 memorandum of deposit of title deed dated 29-4-1976. Ext. A6 is a duplicate of the partition deed entered into between the tarts defendant who was the third executor therein and her three sisters of whom two were ciders to her. Admittedly, it was as per the said partition deed the first defendant has got the plaint schedule properties as her own. Ext. A6 is in a stamp paper worth Rs.5/-. It was signed by all the 4 executants and was also registered along with the original on the same day on which the original was registered. It is also relevant to note that there is a significant recital in the document that three duplicates of the partition deed have been prepared and registered simultaneously. After depositing Ext. A6 with the Bank, the first defendant executed Ext. B2 sale deed in respect of a portion of item No.1 properly in the plain! schedule measuring 10 cents in extent in favour of defendants' 5 and 6 who alone resisted the suit raising the contention that the equitable mortgage alleged to have been created in favour of the Bank by deposit of Ext. A6 document is invalid to the extent of the properly covered by Ext. B2 and no decree can be passed against Ext. B2 property. It was contended that Ext. A6 document is invalid to the extent of the properly covered by Ext. B2 and no decree can be passed against Ext. B2 property. It was contended that Ext. A6 duplicate of the partition deed can only be treated as a copy of the original partition deed. An equitable mortgage can be validly created only by depositing the original deed creating title and not by a duplicate which can at best be treated only as a document evidencing title. As such no decree can be passed against them personally or against the properly covered by Ext. B2. The learned judge has accepted the above contention raised by defendants 5 and 6 and has held that the equitable mortgage created by the first defendant is invalid to the extent of the property covered by Exts. B2 sale deed. It is against the decree so passed by the Sub Court that the appellant: has preferred this appeal. Originally defendants 1 and 2 alone were made parties to the suit. In the suit though defendants 1 and 2 have appeared through a counsel, they have not seriously contested the suit. Defendants 3 to 7 were impleaded later. 4. On behalf of the Bank only P.W. 1, the Manager of the Pappanamcode Branch of the plaintiff-bank was examined. On the side of defendants 5 and 6, D.Ws.1 to 7 were examined. 5. The learned Sub Judge has found on the basis of the detailed oral evidence that defendants 5 and 6 have purchased the property after duly verifying the original of the partition deed and paying valuable consideration. That I i tiding has not been challenged in the appeal. We find that the said finding is fully justifiable in the light of, the evidence available on record and justifiably relied on by the learned Sub Judge. The only question to be considered as already indicated is whether the finding that the equitable mortgage admittedly created by the first defendant by depositing Ext. A6 duplicate of the partition deed is valid and binding to the full extent or is invalid as regards Exi.B2 property. 6. Ext. The only question to be considered as already indicated is whether the finding that the equitable mortgage admittedly created by the first defendant by depositing Ext. A6 duplicate of the partition deed is valid and binding to the full extent or is invalid as regards Exi.B2 property. 6. Ext. A6 as already indicated, is a duplicate prepared along with the original itself in a stamp paper worth Rs.5/- and registered after it was signed by all the 4 parties to the partition deed on the very same dale on which the original of the partition deed was executed and registered. There is a recital to that effect in the original and Ext. A6 duplicate also. The very fact that apart from the original, 3 duplicates were also prepared and registered would go to show that each of the parties to the partition deed wanted to have separately cither the original or duplicate of it for their own purposes. The evidence of D.W.3, husband of another sister of the first defendant, is to that effect. There is no case for anybody including defendants 5 and 6 that 11 rst defendant was given the original of the deed of partition. The evidence of D.W. I, the Manager of the Bank of India, Kottayam Branch would show that one of the elder sisters of the first defendant has deposited the original partition deed with Bank of India by way of an equitable mortgage. Though the evidence adduced by defendants 5 and 6 is to the effect that at the lime of execution of Ext. B2 sale deed, the power of attorney holders were shown the original partition deed, no witness has staled that after the execution of the partition deed the original was handed over to the first defendant to be kept by her as of right or otherwise. In fact the evidence of D.W.3 would show that the original was with the 7th defendant, the father of the first defendant, who was alive then. D.W.3 has further slated that D.W.2 has approached him to show the original of the partition deed and it was he who has got the original from the box kept by the 7th defendant. In fact the evidence of D.W.3 would show that the original was with the 7th defendant, the father of the first defendant, who was alive then. D.W.3 has further slated that D.W.2 has approached him to show the original of the partition deed and it was he who has got the original from the box kept by the 7th defendant. As such it is a case where one has to reasonably proceed on the basis that the original partition deed was not available with the first defendant and she was given only the duplicate deposited by her. 7. In this connection it is relevant to note, the peculiar legal status of duplicate of documents in general and in particular of a partition deed. Stroud's judicial dictionary assigns the following meaning to the word 'duplicate'. "A duplicate is a document which is essentially the same as sonic other documents, having precisely the like operation and, effect." (emphasis supplied) (5th Edn. Vol. 2 page 788) The following observations of Woodroffe & Amir All while dealing with the legal effect of Explanation I to S.62 of the Evidence Act is in tune with the above meaning of the word 'duplicate' and is relevant in the context: ".... It is convenient sometimes that each party to a transaction should have a complete document in his own possession. To effect this, the document is written out as many times as there are parties and each document is excused that is, signed or sealed as the case may be-by all the parties. No one of these is more the original than the other, and any one of them may be produced as primary evidence of the contents of the document. When an instrument is executed by all the parties in duplicate or triplicate, and each party keeps one, each instrument is treated as an original, and each is primary evidence of all the others...." (15th Edn. Vol. 2 Page 714) In Manuila Rajamanikkam v. Sushila Tliaknr Dass (AIR 1983 All. 90) a duplicate prepared by using carbon paper duly executed by the testator and attested by the witnesses in accordance with law was treated as original will itself. Since both wills were executed separately both were held to be original itself. What is relevant lobe noted is that duplicates unlike certified copies are treated as primary evidence of the transaction itself just. Since both wills were executed separately both were held to be original itself. What is relevant lobe noted is that duplicates unlike certified copies are treated as primary evidence of the transaction itself just. like the original as per S.62 of the Evidence Act. Ext. A6 as the title deed of the properties allotted to her as per 'C' schedule therein and allowing her to deposit the same with it by way of equitable mortgage as a collateral security for the loan. 10. Learned counsel for defendants 5 and 6 contended that whatever may be the peculiarities of a duplicate which may distinguish it from a certified copy or registration copy of a document, it can never be treated as the original itself .1 n law, a duplicate can be accepted as title deed only in cases where it is established that the original is lost. It was submitted that there is a duly cast on the Bank while accepting a duplicate as a title deed to ascertain whether the original is lost and if lost to give public notice about such loss before accepting the duplicate with a view to safeguard the interest of bona fide persons who may enter into some other transactions with respect to the equitably mortgaged properties subsequent-to the deposit of the duplicate relying upon Unoriginal which may still be with the depositor. The policy of the law cannot be to permit the mortgagor to enter into successive transactions even alter creation of an equitable mortgage without disclosing the mortgage created by him earlier. Strong reliance was placed on the decisions in Syndicate. Bunk v. Modem Tile and Clay Works (1980 KLT 550) and Popular Rank Lid. v. United Coir Factories (1961 KLT 434). 11. We do not think that we will he justified in ignoring altogether the legally recognised peculiarities of duplicates of partition deeds and other deeds creating title in favour of more than one individual and equating it to, a mere copy of document and applying the principles laid down in the decisions dealing with copies to cases like the one on hand involving duplicate documents. To do so, would he to miss the vital distinctions-statutorily recognised and judicially acknowledged-existing between the above two kinds of documents. The decision Syndicate Bank v.ModemTile and Clay Works (1980 KLT 550) was with reference to a case of deposit of registration copy. To do so, would he to miss the vital distinctions-statutorily recognised and judicially acknowledged-existing between the above two kinds of documents. The decision Syndicate Bank v.ModemTile and Clay Works (1980 KLT 550) was with reference to a case of deposit of registration copy. We are generally 'in agreement with the view expressed by the Division Bench in the above decision regarding the conditions subject to which alone copies of documents of title can be accepted for the purpose of creating equitable mortgages and the statement of the policy of law which requires such conditions to be imposed while accepting copies of the documents as title deeds for the purpose of creating equitable mortgages. However, we find that a later Division Bench Asshnnnui v. State Bank of Mysore (ILR 1990 (2) Ker. 43) has made the following observations with respect to the principles laid down in the above decisions. "We have not understood the observation of the Division Bench to mean that only incases where the original title deed is lost that deposit of a registration copy can validly create an equitable mortgage...."' After observing so, lire Division Bench in that case has held that registration copy of a gift deed were by several properties were gifted to various donees can be used for creating an'equitable mortgage' if it is established that the original was not with the depositor of the document at the relevant time though the original was not lost. Except for the general statement regarding the policy behind the legal principle that equitable mortgage should be created generally by depositing the original itself, the decision in Popular Bank Ltd. v. United Coir Factories (1961 KLT 434) as such may not. have any application to the facts of the case on hand. As such we do not find any merit in the above contentions raised on behalf of defendants 5 and 6 relying upon the above two decisions. 12. have any application to the facts of the case on hand. As such we do not find any merit in the above contentions raised on behalf of defendants 5 and 6 relying upon the above two decisions. 12. Thus on a consideration of the rival contentions and principles discussed' above, we arc inclined to take the view that in a case where duplicate partition deed registered along with the original is deposited bona fide by one of the executants of the partition deed (or persons claiming through such executants) to whom only a duplicate was given as his title deed and not the original; deposit of original need be insisted only as a rule of prudence and caution-and not as a legal requirement for the purpose of validly creating an equitable mortgage. In this view, we hold that the learned Sub Judge was not justified in treating the duplicate as a mere copy and applying the principles governing cases where copies of title deeds alone are deposited and holding that duplicate can be accepted as title deeds for the purpose of creating equitable mortgage only when the original is lost. 13. In the view which we have already taken regarding the acceptability of Ext. A6 for creating an equitable mortgage, we do not find any merit in the contention ofthe learned counsel for defendants 5 and 6 that the Bank was grossly negligent in accepting Ext. A6 for creating an equitable mortgage and as such the principles contained in S.78 of the Transfer of Property Act is applicable to the case on hand and the equitable mortgage even if it is held to be valid should be declared as invalid or inoperative at least to the extent of the properly covered by Ext. B2. Section 78 in terms apply only to cases of prior and subsequent mortgages and not to the case of a prior mortgagee and subsequent purchaser. The wording of S.78 itself makes it clear. Further on facts also we are not satisfied that the Bank was in any way negligent in accepting Ext. A6 as a title deed of the first defendant for the purpose of creating the equitable mortgage in question. 14. The wording of S.78 itself makes it clear. Further on facts also we are not satisfied that the Bank was in any way negligent in accepting Ext. A6 as a title deed of the first defendant for the purpose of creating the equitable mortgage in question. 14. As we are agreeing with the finding of the learned Sub judge that defendants 5 and 6 arc bona fide purchasers for valuable consideration, we find that it is just and essential to direct the Bank to proceed against the property covered by Ext. B2 only in case the amounts realised by the sale of other items of properties are found insufficient to satisfy the entire decree amount and only to the extent necessary to satisfy the balance. In the light of the similar direction given by the trial court as regards item No.5, we. make it clear that item No. 5 as well as the properly covered by Ext. B2 can be proceeded against only after the other items of properties are sold. 15. Learned counsel for defendants 5 and 6 has submitted that his clients are willing to deposit the total amount of Rs. 30,000/- which is shown as the estimated market value of Ext. B2 property in the memorandum of appeal to free the said property from the liability without waiting for the result of the execution steps which this Court is directing the Bank to lake against the other items of properties before proceeding against Ext. B2 property. Though we arc not accepting the suggestion, we feel that it is a suggestion which deserves to be considered favourably by the Bank in the facts and circumstances of the case. 16. We would accordingly modify the decree passed by the trial court into one for sale of plaint schedule item No.1 property also for the realisation of the amounts found due by the trial court subject to the direction that item No. 5 property and the property covered by Ext. B2 sale deed will be sold only if any part of the decree remains unsatisfied even after sale of the other items of properties, fn all other respects the decree passed by the trial court will stand. Appeal is allowed as indicated above. In the facts and circumstances of the case, the parties are directed to bear their respective costs.