JUDGMENT: The only question that arises in this appeal is, whether a case of mortgage by deposit of title deeds can be accepted without pleadings or satisfactory proof regarding the place at which the deposit was so made? 2. The defendants 2 and 3 are the appellants. The plaintiff/first respondent’s case is that on 6.6.1984 he lent a sum of Rs.1,15,000 to the first defendant/second respondent. Ex.A-1 promissory note was executed as evidence of the transaction. P.Ws.1 and 2 are shown as witnesses in this document. 3. According to the plaint, on 8.6.1984 the title deeds to the suit property which are Ex.A-2, were handed over to the first respondent with an intention to create an equitable mortgage. On 9.6.1984 under Ex.A-3 a letter was given, confirming the deposited of title deeds on 8.6.1994 with an intention to create a mortgage. Since the second respondent did not pay either the interest or the principal and had also alienated the Ex.A-2 property in favour of the appellants under Ex.B-2, the suit was filed against the second respondent and the appellants for recovery of the amounts due and for a personal decree against the second respondent and for a direction for appellants as well as the second respondent to pay the suit amount within the time fixed by the court and on failure to do so to order sale of properties. 4. The second respondent remained ex parte. The first appellant filed his written statement, which was adopted by the second appellant. They denied the suit borrowal and submitted that the mortgage was created in collusion with the second respondent. To defeat the rights of the appellants, the second respondent had also filed I.P.Nos.70 of 1984 and 7 of 1985 to declare himself as an insolvent. The creation of equitable mortgage was denied and the memorandum viz., Ex.A-3 was also denied as false and in any event, it was stated that the appellants are not bound to pay any amount to the first respondent and nor can the properties be brought to sale for any amount alleged to be due to the first respondent. The Trial Court decreed the suit granting a personal decree even against the appellants and for sale of the suit properties. 5. The Trial Court decreed the suit granting a personal decree even against the appellants and for sale of the suit properties. 5. The learned counsel for the appellants would submit that the plaint and Ex.B-1 suit notice are totally silent regarding the place at which the deposit of title deeds was made. The cause of action in the plaint does not show, where the equitable mortgage was created. For the first time in the evidence of P.Ws.2 and 3 a case was sought to be created that the first respondent is carrying on business at Tiruchengode and the deposit of title deeds was made there and therefore, the memorandum viz. Ex.A-3 recorded a valid mortgage by deposit of title deeds. The learned counsel also pointed out P.W.1, the first respondent/plaintiff in his evidence does not speak about this aspect. In re-examination a clumsy attempt was made to fill up the lacuna. It was submitted that in the absence of pleading, no amount of proof is of any use and so the appeal must be allowed. 6. The learned Senior Counsel Mr.K.Doraiswami, appearing for the first respondent would however, submit that individual phrases or sentence cannot be snatched from the evidence to create a case against the plaintiff. When the evidence is read as a whole, it would clearly show that a valid mortgage was created by deposit of title deeds in Tiruchengode. It was pointed out that in Ex.A-1, the scribe’s address is at Tiruchengode. P.Ws.2 and 3 who have signed as witnesses to Ex.A-1, have categorically stated that this was executed in C.H.B. Colony at Tiruchengode, where the first respondent was carrying on business, and that the title deeds were handed over and Ex.A-3 was written at Tiruchengode. The failure to mention in the plaint the place, where the title deeds were deposited, would really not be fatal to the case, when there is enough evidence to prove it. Ex.B3, the appellants document which is the copy of I.P. filed by a Finance Company against the appellants and the second respondent and Ex.B-5 in which the first respondent’s father had filed application to implead himself to show that the father was shown as doing business at C.H.B. Colony at Tiruchengode Town. So on the date of suit, the first respondent was together with his father in C.H.B. Colony at Tiruchengode. So on the date of suit, the first respondent was together with his father in C.H.B. Colony at Tiruchengode. It was also pointed out that assuming without admitting that there is a lacuna in the plaint, the appellants ought to have challenged the veracity of the testimony of P.Ws.2 and 3. The Trial court was satisfied with th evidence of P.Ws. 2 and 3 and there was no reason for this court to come to a different conclusion. 7. Sec.58 (f) of the Transfer of Property Act reads as follows: “(58)(F) Mortgage by deposit of title deeds: Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent document of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.” 8. In the Transfer of Property Act, Mulla’s Ninth edition, it is stated that such mortgages, which are equitable mortgages or mortgages by deposit of title deeds have been recognised by the Transfer of Property Act as equivalent to simple mortgages and that operation has been restricted to certain centers of commerce and that this has been done as a matter of convenience to the mercantile community to enable them to borrow money without the delay of investigation of title and the publicity of registration. It is also observed that such mortgages are however at variance with the policy of publicity of transfer underlying this Act and the Registration Act. 9. Therefore, it is incumbent upon the persons who plead a case of equitable mortgage to prove that they have satisfied the requirements of the Section. There must be (a) a debt, (b) a deposit of title deeds and (c) an intention to create an equitable mortgage. Further this deposit should have been done in one of the notified towns. The plaint does not speak about the place at which the title deeds were deposited. There must be (a) a debt, (b) a deposit of title deeds and (c) an intention to create an equitable mortgage. Further this deposit should have been done in one of the notified towns. The plaint does not speak about the place at which the title deeds were deposited. The relevant extracts from the plaint are as follows: “Subsequently, the Ist defendant deposited his title deeds that is the sale deed dated 24.2.1984 which stands in his favour with the plaintiff on 8.6.1984 as security for the amount due under the promissory note with the intention of creating an equitable mortgage in favour of the plaintiff on 9.6.1984 the defendant executed a memorandum confirming the deposit of title deed with the plaintiff and created an equitable mortgage for the amount already borrowed in respect of the properties, covered under the sale deed.”“.......on 8.6.1984 when the Ist defendant deposited his title deed with the plaintiff and on 9.6.1984 when the defendant executed a memorandum and created an equitable mortgage by deposit of title deed and the dates of notice and reply notice and on each subsequent dates at Molasi Village, Tiruchengode Taluk ....” 10. The appellants have, of course, totally denied the existence of equitable mortgage. Since they are transferees from the alleged mortgagor and since the second respondent, who is said to have created the mortgage, had chosen to remain ex parte, the appellants can have no knowledge of where the equitable mortgage was created. So, we must see, whether the evidence throws any light on this matter. 11. The first respondent, who is the plaintiff, is an income tax assessee and according to him he carries on the business of money lending. In his chief examination he does not say where Ex.A1 was executed or where Ex.A-2 was deposited with intention to create an equitable mortgage or where Ex.A-3 was written. In the cross examination, he states that, on 6.6.1984, the second respondent had not shown in Ex.A-2 and when he asked the second respondent for some security for the said loan, the second respondent’s father-in-law said that on 8.6.1984 he would deposit the title deeds and since the second respondent was a known person, the loan was given on 6.6.1984 itself. The witness also admits that he alone gave instructions to the Advocate at Salem to issue Ex.B-1. The witness also admits that he alone gave instructions to the Advocate at Salem to issue Ex.B-1. The witness further states that on the date of Ex.A-4 and also on the date of the suit, he was residing in Puliambatti. The witness was recalled and an answer has been elicited subject to an objection that he also carries on the business of money lending at Tiruchengode C.H.B. Colony. Neither his evidence, nor Ex.B-1 makes any mention of C.H.B. Colony. The witness is not able to explain why the address of Pudhupuliambatti is given in Ex.A-5, his account book, which is with reference to his tax assessment as an individual. Therefore, from P.W.1’s evidence it is not possible to find out where the title deeds were deposited. 12. P.W.2 claims to have attested in Ex.A-1 and his evidence is that Ex.A-1 was executed at Tiruchengode C.H.B.Colony. This has been objected to by the appellants. According to P.W.2 on 8.6.1984, he went to C.H.B. Colony house, which belongs to the first respondent and at that time, the first respondent asked the second respondent’s father-in-law to give some security and therefore on 8.6.1984 Ex.A-2 was handed over at It was submitted by the learned Senior counsel should not be constituted as the place of residence but it is more a reference to a building where the person happens to be as opposed to agricultural lands or vacant lands. The witness further states that the letter Ex.A-3 was also written in Tiruchengode C.H.B. Colony. Again this was objected to on the ground that there was no pleading. In the cross examination the witness admitted that neither Ex.A-1 nor Ex.A-3 makes any mention of the first respondent residing at C.H.B. Colony at Tiruchengode. On the contrary, a perusal of Exs.A-1 and A-3 clearly shows that K.Muthusamy, the first respondent is residing at Pudupuliambatti village. Further P.W.1’s evidence is to the effect that on 6.6.1984 itself, he asked for security to be given by the second respondent’s father-in-law. This is contradiction of P.W.2’s evidence that only on 8.6.1984, when he went to P.W.1’s house he asked the second respondent to request his father-in-law to make security. This is a very vital contradiction since it is only on this date the alleged mortgage is said to have been created. This is contradiction of P.W.2’s evidence that only on 8.6.1984, when he went to P.W.1’s house he asked the second respondent to request his father-in-law to make security. This is a very vital contradiction since it is only on this date the alleged mortgage is said to have been created. A suggestion has been put to this witness that Exs.A-1 and A-3 have been concocted for the purpose of the suit. 13. P.W.3 also claims to have attested in Ex.A-1. He has stated that the first respondent asked the second respondent to give security for the loan and two days after Ex.A-1 was written, the second respondent came to Tiruchengode and handed over the title deeds Ex.A-2. This is in chief examination and it supports the case of the first respondent since Ex.A-1 dated is 6.6.1984 and Ex.A-2 is said to have been handed over on 8.6.1984. However, in cross examination, he has stated that at the time of Ex.A-1, the first respondent had handed over the money to the second respondent and no demand was made to the second respondent to furnish security. This also is a vital discrepancy with regard to the creation of mortgage. A suggestion was also made to this witness that after Ex.A-1 was prepared, the signature of P.W.3 was obtained in Ex.A-1. 14. The discussions above would clearly show that even if without pleadings one were to take note of the oral evidence on behalf of the plaintiff, it does not establish the creation of a mortgage by deposit of title deeds. P.W.1, the plaintiff himself has not spoken about the place where the deposit of title deeds was made and the evidence P.Ws. 2 and 3 do not inspire confidence for the reasons set out above. Above all, the first respondent not having pleaded a vital factor regarding the place where the title deeds where deposited, cannot fill in the gap by oral evidence. To make matters worse, his own evidence is absolutely useless. So he brings in two witnesses to support him, and both of them fumble around with contradictions. If the first respondent wants to take advantage of Sec.58(f) of Transfer of Property Act, he must show it applies to his case. The appellants grievance is justified. The judgment and decree of the trial court are set aside in so far as the decree against the mortgaged property is concerned. If the first respondent wants to take advantage of Sec.58(f) of Transfer of Property Act, he must show it applies to his case. The appellants grievance is justified. The judgment and decree of the trial court are set aside in so far as the decree against the mortgaged property is concerned. However, the personal decree against the second respondent is left undisturbed. The appeal is allowed. No costs.