JUDGMENT R. Mahadevan, J. 1. This Appeal is filed against the judgment and decree dated 28.02.2003 made in O.S. No. 5 of 2002 on the file of the Additional District and Sessions Judge, Fast Track Court No. II, Salem, wherein the trial Court passed the preliminary decree in a money suit. The appellant herein was the sixth defendant, the first respondent herein was the plaintiff, and the respondents 2 to 10 are the defendants 1 to 5 and 7 to 10 in the suit before the trial court. For convenience, the rank of the parties before the trial court is maintained infra. 2. The averments made in the amended plaint before the trial Court are as follows: (i) The plaintiff is a money lending financial concern, registered under the Partnership Act. The defendants 1 to 4, who are brothers, borrowed Rs. 2,50,000/-, Rs. 1,00,000/-, Rs. 1,00,000/- and Rs. 50,000/- and executed pro-notes on 10.10.1987, 23.10.1987, 12.12.1987 and 15.12.1987 respectively in favour of the plaintiff agreeing to repay the same with interest at Rs. 1.75 per hundred per month i.e., at the rate of 21% per annum. The amounts were lent by cheque either in favour of one or the other of the four brothers, viz., defendants 1 to 4. On 12.10.1987, the defendants 1 to 4 had deposited the documents of title of their properties along with Encumbrance Certificate with plaintiff, thereby creating an equitable mortgage. Apart from the above two documents, a copy of decree dated 21.04.1987 in O.S. No. 203 of 1987 was deposited on 16.12.1987 making the sale deed dated 01.03.1974, a prior title deed. (ii) On 16.08.1992, the defendants 1 to 3 took from the plaintiff, the original title deed dated 01.03.1974, stating that they would use it to procure buyers in order to discharge debts secured by the immovable property. But they had given the original sale deed to the sixth defendant bank in order to create equitable mortgage. Hence, the sixth defendant is a subsequent mortgagee. (iii) The plaintiff's partner C.S. Devarajan (deceased fifth defendant) had also lent to defendants 1 to 4 in his individual capacity a sum of Rs. 3,00,000/-. Hence, C.S. Devarajan is added as subsequent mortgagee (5th defendant). Since the 5th defendant died pending suit, his legal representatives have been impleaded as defendants 8 to 10 in this suit. (iii) The plaintiff's partner C.S. Devarajan (deceased fifth defendant) had also lent to defendants 1 to 4 in his individual capacity a sum of Rs. 3,00,000/-. Hence, C.S. Devarajan is added as subsequent mortgagee (5th defendant). Since the 5th defendant died pending suit, his legal representatives have been impleaded as defendants 8 to 10 in this suit. (iv) The defendants 1 to 4 have been adjudged insolvents as per order in Insolvency Cases 6/1993 and 7/1993 - Additional City Civil Judge Court, Bangalore City. Hence, the official receiver, in whom the assets of the insolvents vest and who is the administrator of the estate of the insolvents has been added as 6th defendant. (v) In the above circumstances, the plaintiff is constrained to file this suit for preliminary decree directing the defendants to deposit the total sum of Rs. 5,80,062.50p together with subsequent interest at 21% per annum and costs, charges and expenses within the time fixed by the Court and in default of deposit, ordering sale of the mortgaged properties and from out of the sale proceeds pay all sums due to plaintiff upto date of such payments. 3. The sixth defendant before the trial Court denied all the averments made in the plaint and contended that the sale deed dated 01.03.1974 was in respect of larger extent of property and as per the allegations in the plaint, the said property belongs to the defendants 1 and 2. By virtue of the final decree, the defendants 1 to 4 together got the property mentioned in the plaint and the other portions of the property covered by the sale deed dated 01.03.1974 was allotted to the share of their mother Mohini Bai Amarsingh. It is true that the defendants 1 to 4 have been adjudged as insolvents and their properties have been ordered to be vested with the official receiver. It is true that the defendants 1 to 4 have been adjudged as insolvents and their properties have been ordered to be vested with the official receiver. The defendants 1 to 4 were doing business under various Firms and the defendants, their wives and mother are partners in one or other Firms and they were enjoying credit facilities with this defendant for a long time and they have given the suit property and the adjoining property belonging to Mohini Bai Amarsingh as security for the borrowings made by them for the above said businesses and since the original sale deed dated 01.03.1974 has been misplaced by them, they deposited the registration copy of the sale deed dated 01.03.1974 and the certified copy of the final decree in O.S. No. 203/87 and the registration copies of prior documents of title on 25.11.1991 and created equitable mortgage for all the amounts borrowed by them. However, they produced the original sale deed dated 01.03.1974 on 25.08.1992 and confirmed the earlier deposit of title deeds already made and they have not made any fresh loan on the original sale deed. This defendant has filed a suit in O.S. No. 360 of 1993 and obtained preliminary mortgage decree against the suit property and adjoining property of Mohini Bai Amarsingh. This defendant is the only mortgagee of the properties of the defendants 1 to 4 and their mother Mohini Bai Amarsingh. The plaintiff is not having the original sale deed. The final decree copy is not an original document of title. Therefore, the plaintiff cannot get a mortgage decree over the property mentioned in the plaint. Hence, the suit is liable to be dismissed. 4. The gist of the facts narrated in the written statement of the 7th defendant/official receiver is as follows: Since the defendants 1 to 4 have been declared as insolvents, the official receiver has been appointed as receiver of the properties of the insolvents and hence, on behalf of the defendants 1 to 4, the Written statement is being filed by this defendant. The suit filed by the plaintiff is not maintainable in law. In fact, all the partners of the Firm have not been made party to the proceedings. This defendant denied the transaction between the plaintiff and the defendants 1 to 4. The alleged transaction is barred by limitation, even if the said transaction is assumed to be true. The suit filed by the plaintiff is not maintainable in law. In fact, all the partners of the Firm have not been made party to the proceedings. This defendant denied the transaction between the plaintiff and the defendants 1 to 4. The alleged transaction is barred by limitation, even if the said transaction is assumed to be true. The alleged partition decree made in O.S. No. 203 of 1987, unless it is transcribed in a regular stamp paper by the order of the Court in respect of the respective shares with metes and bounds, could not be looked into as the same does not create any right or interest in the property. The question of renewal of pronotes does not arise when the plaintiff himself has come forward with a plea of equitable mortgage to the total sum of Rs. 5,00,000/- out of which 2 1/2 lakhs pertains to pronotes as stated in the plaint allegations. This defendant is not aware of the fact that the 6th defendant is a subsequent mortgagee. If the 5th defendant had really lent a sum of Rs. 3,00,000/-, in his individual capacity to the defendants 1 to 4, he ought to have filed a separate suit against the defendants 1 to 4. The alleged letter dated 18.09.1991 does not confer any right or title in favour of the plaintiff which is given to the 5th defendant and therefore, the plaintiff cannot produce that letter in this case and contend that the 5th defendant is a subsequent mortgagee. The alleged transaction and cause of action are all different and the plaintiff cannot club this matter at one instance as the plaintiff and also as 5th defendant. The claim of the plaintiff is barred by limitation and the suit is liable to be dismissed. 5. The brief facts of the written statement filed by the 8th defendant and adopted by 9th and 10th defendants are as follows: The 5th defendant, who was the partner of the plaintiff firm, was also doing money lending business individually. The defendants 1 to 4 borrowed a total sum of Rs. 3,00,000/- on various dates and executed a pronote on 16.09.1991 and the defendants paid various amounts towards interest on various dates. The defendants 1 to 4 borrowed a total sum of Rs. 3,00,000/- on various dates and executed a pronote on 16.09.1991 and the defendants paid various amounts towards interest on various dates. The defendants 1 to 4 agreed to treat the deposit of title deeds with plaintiff firm as deposit of title deeds for the debt due to C.S. Devarajan also and to that effect, the defendants 1 to 4 addressed a letter dated 18.09.1991 to the 5th defendant. Thus there is an equitable mortgage in favour of the 5th defendant and he is the second mortgagee. After the demise of 5th defendant, defendants 8 to 10 have stepped into his shoes. These defendants are ready and willing to comply with the direction that will be passed by the court. The defendants are prepared to pay the required court fee and suitable decree may be passed in favour of the defendants 8 to 10. 6. On perusal of the pleadings in the amended plaint and the written statements, the Trial Judge framed the following issues: 1. Whether 6th defendant is the only mortgagee of the properties of defendants 1 to 4 and their mother Mohini Bai Amarsingh? 2. Whether the suit is barred by limitation? 3. Whether the plaintiff is entitled to the suit claim? 4. To what relief, if any, is the plaintiff entitled to? 7. Before the Trial Court, two witnesses have been examined as P.W. 1 and P.W. 2 and Exs. A1 to A36 have been marked on the side of the plaintiff. On the side of defendants, one witness has been examined as D.W. 1 and Exs. Bl to B38 have been marked. The Trial Court, on analysis of the oral and documentary evidence adduced on both sides, passed preliminary decree in favour of the plaintiff. Aggrieved sixth defendant has filed the present appeal against the judgment and preliminary decree of the Trial Court. 8. Heard the arguments advanced by Mr. R.S. Varadaraja, learned counsel appearing for the appellant/sixth defendant, Mr. P. Jagadeesan, learned counsel appearing for the first respondent/plaintiff and Mr. A.K.R. Ravi, learned counsel appearing for the seventh respondent/official receiver. The materials available on record are also perused. 9. 8. Heard the arguments advanced by Mr. R.S. Varadaraja, learned counsel appearing for the appellant/sixth defendant, Mr. P. Jagadeesan, learned counsel appearing for the first respondent/plaintiff and Mr. A.K.R. Ravi, learned counsel appearing for the seventh respondent/official receiver. The materials available on record are also perused. 9. The learned counsel for the appellant has contended that the learned trial Judge had failed to appreciate that as per the averments in paragraph 13 of the plaint, the plaintiff voluntarily relinquished the charge, if any, existed in their favour over the schedule property for the purpose of enabling the defendants 1 to 4 to sell the property and discharge the plaintiff's loan and therefore, the question of plaintiff is continuing to have the charge over the plaint schedule property with priority over the charge in favour of the appellant/6th defendant does not arise. 10. The learned counsel for the appellant has further contended that the plaintiff has not adduced any evidence to show that inspite of due diligence, material documents or documents of title went out of their custody and that they had intended to continue their charge on the plaint schedule property inspite of voluntarily relinquishing the custody of the title documents, but on the contrary, the plaint averments confirmed that plaintiff had in fact relinquished the charge over the suit schedule property to enable the defendants 1 to 4 to alienate the same. 11. Relying on Section 78 of the Transfer of Property Act, the learned counsel for the appellant has submitted that since the plaintiff has failed to prove the diligence in holding the material or original documents of title, the right of priority as prior mortgagee would be lost and therefore, the learned trial Judge ought to have dismissed the suit. 12. The learned counsel for the appellant has added that since the plaintiff has failed to produce the title deeds before the court to prove that the defendants 1 to 4 have deposited their title deeds creating equitable mortgage and in such circumstances, the trial court erred in decreeing the suit as prayed for. 13. The learned counsel for the appellant has also maintained that the mere production of Ex. A12 certified copy of the decree in a partition suit would not amount to creation of equitable mortgage by deposit of title deeds and therefore, the learned trial Judge has misconstrued himself that the production of Ex. 13. The learned counsel for the appellant has also maintained that the mere production of Ex. A12 certified copy of the decree in a partition suit would not amount to creation of equitable mortgage by deposit of title deeds and therefore, the learned trial Judge has misconstrued himself that the production of Ex. A12 would amount to deposit of title deeds and therefore, the judgment and decree of the trial court is not sustainable in law. 14. In support of his contentions, the learned counsel for the appellant relied on the following decisions: a. Shan Maun Mull and Another v. Madras Building Company 1892 ILR 15 Mad. 268 and the relevant paragraph is as under: "3. It may be noted that such was the view of the law taken by the Madras High Court before the passing of the Transfer of Property Act in Somasundra Tambiran v. Sakkarai Pattan 4 M.H.C.R., 369 In that case, after quoting some Sudder Court decisions on the subject and commenting on the English cases and in particular the then recent case of Thorpe v. Holdsworth 38 L.J. Ch., 194 the learned Judges quoting the words from that case--" The mere possession of the title-deeds by a second mortgagee, though a purchaser for value without notice, will not give him priority. There must be some act or default on the part of the first mortgagee to have this effect," observe:-"We consider this to be a just and reasonable rule to be applied to this country. There must be some act or default on the part of the first mortgagee to have this effect," observe:-"We consider this to be a just and reasonable rule to be applied to this country. The non-possession of the title-deeds by the first mortgagee is a circumstance which certainly calls for explanation on his part, but it may be explained; and if he can satisfy the Court that the absence of the title-deeds was reasonably accounted for to him, at the time when he obtained his mortgage, or that he was subsequently induced to part with them upon such grounds and under such circumstances as to exonerate him from any serious imputation of negligence, he ought not to lose his priority, because the mortgagor may afterwards have dishonestly handed over the title-deeds to a second mortgagee." The decisions upon Section 78 of the Transfer of Property Act in The Madras Hindu Union Bank v. C. Venkatrangiah I.L.R., 12 Mad., 424 Damodara v. Somasundra I.L.R. 12 Mad., 429 adopt the same principle though they are professedly based upon the English decisions." b. The decision in Lloyds Bank Ltd. v. P.E. Guzdar & Co. AIR 1930 Calcutta 22 was relied on by the learned counsel for the contention that if a person claims to relief against another person upon the ground of fraud, fraud must be pleaded and particulars of the fraud alleged must specifically be set out and also for the contention that gross negligence is the cause for handing over the documents by the party. c. Ratan Lal v. Mukandi Lal and Another AIR 1933 All. 299. d. Rajagopal v. State Bank of Travancore, Karur Branch, Karur and Others LNIND 1994 MAD 755 : (1995) 1 MLJ 175 and the relevant portion is as follows: "3. ..... The Division Bench on a consideration of the entire law on the subject and in the light of the pronouncements of the Supreme Court and of this Court and other High Courts, held that in order to create a valid mortgage, it is not necessary that the original documents of title to the property should be deposited........" e. Indian Bank v. Punjab National Bank (2009) 5 CTC 587 : LNIND 2009 MAD 2336 : (2010) 1 MLJ 346 , and the relevant paragraph reads as under: "5. The DRAT, while reversing the judgment of the DRT, observed that Indian Bank had not taken proper care and caution while accepting the certified copies of the sale deed and the Will for creation of the equitable mortgage. By applying the principle of Section 78 of the Transfer of Property Act, DRAT has concluded that since Indian Bank was not diligent in getting proper documents from the borrower and the original owner took advantage by producing the original deeds before Punjab National Bank for obtaining subsequent loan by deposit of original title deeds, the Punjab National Bank was entitled to have priority as contemplated in Section 78 of the Act. " 15. On the other hand, the learned counsel for the first respondent has submitted that the respondents 2 to 5 had borrowed money from the first respondent by depositing the original title deeds even prior to the lending of loan amount by the appellant to the respondents 2 to 5 and therefore, the plaintiff themselves is the first mortgagee and the appellant cannot be sought for any priority. 16. The learned counsel for the first respondent has further submitted that since the respondents 2 to 5 had asked the plaintiff to return the original documents to sell the property and told that out of the sale proceeds, they would settle the amount to the plaintiff and on that basis only, the plaintiff has given the original documents and therefore, it does not amount to relinquishing of equitable mortgage. 17. It is not in dispute that the respondents 2 to 5 had borrowed Rs. 5,00,000/- in the year 1987 from the plaintiff by depositing the original title deeds creating equitable mortgage. Thereafter, it is also not in dispute that the respondents 2 to 5 had got back the original sale deed, dated 01.03.1974 from the plaintiff under Ex. A. 35 Undertaking letter, on 16.08.1992 which reads as under: "Sirs, We and our brothers Ganshyam and Deepak, have deposited with you three documents and created Equitable mortgage. To discharge your debt we require the original sale deed, dated 1.3.1974 deposited with you for procuring buyers. We undertake to return it whenever necessary and if we are not able to get a good offer. We will take a xerox copy of it and hand it over to you immediately." 18. To discharge your debt we require the original sale deed, dated 1.3.1974 deposited with you for procuring buyers. We undertake to return it whenever necessary and if we are not able to get a good offer. We will take a xerox copy of it and hand it over to you immediately." 18. From the above, it is clear that the respondents 2 to 5 had borrowed money from the plaintiff by depositing the title deeds as equitable mortgage. However, when the sale deed, dated 1.3.1974 was returned to the respondents 2 to 5 on their request for procuring the buyers, the transaction has lost its character as equitable mortgage and the plaintiff 's desire was only to get back the money. 19. Thereafter, the respondents 2 to 5 had deposited the original title deeds with the appellant creating equitable mortgage and obtained a loan from the appellant. Subsequently, due to the non payment of the loan amount, the appellant had filed a suit for the recovery of Rs. 36,79,153/- with subsequent interest in O.S. No. 360 of 1993 on the file of the learned Additional Subordinate Judge, Salem, for the following reliefs: a. Directing the defendants to deposit into court the above said sum of Rs. 36,79,153.55 with future interest at 21.75% per annum and costs of suit within the time to be fixed by the court, failing which order realisation of the same by sale of the Suit 'A' Schedule mortgage properties; b. Pass a decree directing realisation of the sum of Rs. 12,04,060.90 by sale of the hypothecated property detailed in schedule B hereunder; c. Directing realisation of Rs. 16,62,852.10 by sale of the hypothecated property described in schedule C hereunder; d. Directing realisation of the sum of Rs. 1,17,900.35 by sale of the hypothecated property shown in schedule D hereunder; e. Pass a personal decree against the defendants 6 to 14 for the sum of Rs. 12,04,062.90 with future interest at 20.75% per annum due by them in respect of the suit 'A' promissory note; f. Pass a personal decree against the defendants 10 to 14 for the sum of Rs. 4,35,898.05 with future interest at 20.75% p.a due by them in respect of the suit 'B' and 'C promissory notes; g. Pass a personal decree against the defendants 8, 9, 12, 13 and 15 for Rs. 4,35,898.05 with future interest at 20.75% p.a due by them in respect of the suit 'B' and 'C promissory notes; g. Pass a personal decree against the defendants 8, 9, 12, 13 and 15 for Rs. 2,58,352.15 with future interest at 17.25% p.a. in respect of the amount due by them under 'D' promissory note. h. Pass a personal decree against the defendants 10 to 14 for Rs. 16,62,852.10 being the amount due by them in respect of suit 'E' promissory note. i. Pass a personal decree against the defendants 7, 12 and 13 for Rs. 1,17,988.15 being the amount due by them in respect of the suit 'F' promissory note. 20. In that suit a preliminary decree was passed on 1.8.1996 as under: "P.W. 1 examined. Exhibits A1 to A32 marked. Claim proved. Preliminary decree is passed as prayed for with cost. Time for payment: 2 months." 21. From the above suit and the preliminary decree, it is clear that the respondents 2 to 5 have deposited the title deeds with the appellant and obtained the loan, which was not repaid by them and therefore, the suit was filed and the preliminary decree was passed and hence, the equitable mortgage with the plaintiff come to an end and the plaintiff cannot proceed against the respondents 2 to 5 on the basis of equitable mortgage. 22. Section 78 of the Transfer of Property Act reads as under: "78. Postponement of prior mortgagee.--Where, through the fraud, misrepresentation or gross neglect of prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee." 23. Section 48 of the Transfer of Property Act reads as under: "48. Priority of rights created by transfer.--Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created." 24. Though the learned counsel for the appellant relying on Section 78 of the Transfer of Property Act has contended that the right of priority to the plaintiff as prior mortgagee would be lost, this Court is of considered view that though the plaintiff had advanced money on the basis of equitable mortgage by depositing the documents and thereafter, when the respondents 2 to 5 had got back the sale deed, dated 1.3.1974, as already held above, the character of equitable mortgage was lost, however, such transaction could have got a lease of life, if the respondents 2 to 5 had returned back the sale deed, dated 1.3.1974. But on the contrary, the respondents 2 to 5 by depositing the original title deeds with the appellant bank and obtained the loan and in view of the non payment of such loan, the appellant had filed the suit and got the preliminary decree by creating the charge over the properties and therefore, the suit itself is not maintainable as it was filed only in the year 2003, i.e., after the passing of the preliminary decree in the suit in O.S. No. 360 of 1993 filed by the appellant. 25. Without considering the evidences both oral and documentary available on record, the trial court passed the preliminary decree, which in the considered view of this court is liable to be set aside. Accordingly, the appeal is allowed setting aside the judgment and decree passed by the trial court and the suit is dismissed without costs.