JUDGMENT : SATHISH NINAN, J. 1. The decree in a suit for money is under challenge by the 5 th defendant. Since the issue involved in the appeal is confined to the liability of the 5 th defendant and his properties, only the facts relevant thereto are being adverted. 2. The plaintiff is a financial institution seated abroad. The first defendant is a co-operative society. Defendants 2 and 3 are its Executive Director and President. The plaintiff granted a loan of US Dollars 4,28,571/- to the first defendant Society. The loan was adequately secured by mortgage of the immovable properties belonging to defendants 4 to 6. Defendants 4 to 6 are brothers. Plaintiff claims that, defendants 5 and 6 had executed a power of attorney in favour of the 4 th defendant and mortgage was created by the 4 th defendant of the properties of defendants 5 and 6. Alleging failure on the part of the defendants to clear off the liability, suit was filed. 3. Defendants 1 to 3, while admitting the transaction contended that the suit is barred by limitation. 4. The 5 th defendant filed a written statement denying the execution of the power of attorney in favour of the 4 th defendant and also the creation of the mortgage of his properties. He contended that he is a stranger to the transaction. It was contended that he is and have been at the United States of America from the year 1970 and that he had rarely come down to his native place after that. He is an American citizen. 5. The trial court held that the 4 th defendant was the power of attorney holder of the 5 th defendant and that the properties of the 5 th defendant were mortgaged by the 4 th defendant in favour of the plaintiff to secure the credit facility. The court decreed the suit allowing the plaintiff to realise the liability from the mortgaged properties and from defendants 1 and 2. 6. We have heard Sri.K.K.Chandran Pillai, learned Senior Counsel for the appellant-5 th defendant and Sri.T.Sethumadhavan, the learned Senior Counsel appearing for the first respondent-plaintiff. 7. The points that arise for determination in this appeal are :- (i) Did the 5 th defendant constitute the 4 th defendant as his power of attorney holder, enabling creation of mortgage of his properties? We have heard Sri.K.K.Chandran Pillai, learned Senior Counsel for the appellant-5 th defendant and Sri.T.Sethumadhavan, the learned Senior Counsel appearing for the first respondent-plaintiff. 7. The points that arise for determination in this appeal are :- (i) Did the 5 th defendant constitute the 4 th defendant as his power of attorney holder, enabling creation of mortgage of his properties? (ii) Is there a valid mortgage in favour of the plaintiff in respect of plaint schedule item numbers 1 to 4 properties? (iii) Does the decree and judgment of the trial court warrant any interference? 8. Exts.A4 to A7 are original title deeds relating to the properties of the 5 th defendant. Exts.A20, 21 and 22 are the documents evidencing the mortgage. With regard to the properties of the 5 th defendant, mortgage is claimed to have been created by the 4 th defendant as the power of attorney holder of the 5 th defendant. The power of attorney is claimed to be one executed before a Notary Public at USA. The 5 th defendant denies of having executed any such power of attorney. It is the contention of the 5 th defendant that, Exts.A4 to A7 original deeds, which were kept in the Tarwad house was unauthorisedly taken away by the 4 th defendant and the alleged mortgage was created on fabricating a power of attorney of the 5 th defendant. 9. Before we go to the merits of the above contention, we deem it appropriate to consider the legal effect of Ext.A21, the deed of mortgage. The title and the recitals in Ext.A21 without the schedule of the properties, read thus:- “ TITLE DEED MORTGAGUE (Under Section 58 (f) of the Transfer of Property Act , India) I, Mr. JOSE EUGIN JOSEPH , Chirayil House Ettumannoor, Ettumannoor P.O., Kottayam Dist., Kerala State, The advisory board member of Nirmalgram Vanitha Dairy Central Society, Kothamangalam, hereby mortgage and deposit the following TITLE DEEDS of 1.33.13 Ares of land in Ettumanoor Township, of which I am the Power of Attorney holder as per Power of Attorney L.No.0849 executed before Vice Consul, Consulate General of India, New York., to Oikocredit (Ecumenical Development Co-operative Society UA) The Netherlands. The Title deeds are mortgaged and deposited with Oikocredit as envisaged under section 58(f) of the Transfer of Property Act , India, as a continuing collateral security for the loan of US Dollars 4,28,571.00 (United States Dollars). Four Lakhs Twenty Eight Thousand Five Hundred and Seventy one only) to be availed by Nirmalgram Vanitha Dairy Central Society, Kothamangalam and the for the interest and all other amounts due to Oikocredit according to the loan agreement made by Oikocredit and Nirmalgram Vanitha Dairy Central Society on 18 th December 2000. Section 17(1)(c) of the Registration Act stipulates that any non- testamentary instrument creating an interest over immovable property shall be compulsorily registrable. The recitals in Ext.A21, quoted above, reveals that the mortgage is purported to be created under the document. The recitals does not suggest that it was executed merely to acknowledge the creation of a mortgage. The mortgage is created under the instrument. Therefore, in terms of Section 17(1)(c) above, the document is compulsorily registrable. 10. The learned Senior Counsel for the plaintiff would rely on the judgment of this Court in South Indian Bank Ltd. v. K.P. Ramachandran and Another, 2017 (2) KHC 998 to contend that, since Ext.A21 does not incorporate the terms and conditions of the mortgage, the document is not compulsorily registrable. We are unable to accept the argument for reasons more than one. In South Indian Bank Ltd. (supra), this Court was considering the question whether, the memorandum or letter of acknowledgment of creation of mortgage executed contemporaneously with the deposit requires registration or not. Relying on the judgment of the Apex Court in Rachpal Mahraj v. Bhagwandas Darulka and others, AIR 1950 SC 272 and State of Haryana and others v. Navir Singh and Another, AIR 2014 SC 339 , this Court held that, whether the letter of acknowledgment was executed contemporaneous to or simultaneous with the deposit of title deed is not the relevant criteria in deciding whether the document requires registration or not. In that case, the letter of acknowledgment was simultaneous to the creation of mortgage by deposit of title deed. This is evident from the following statement in the judgment. “..... In that case, the letter of acknowledgment was simultaneous to the creation of mortgage by deposit of title deed. This is evident from the following statement in the judgment. “..... The purpose behind the execution of such a document is to acknowledge the fact that the title deed/s referred to therein relating to the particular property has been deposited/handed over by the party to the creditor with intend to create a mortgage. Mortgage is created by the deposit of the title deed and not under the memorandum or letter of acknowledgment. Ext.A9 is such a document. …..” It is to be noticed that this Court had referred to the judgment of the Apex Court in State of Haryana (supra) which held “.... the parties may choose to have a memorandum prepared only showing deposit of the title deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates rights, liabilities or extinguishes those, the same requires registration.” So, where the creation of the mortgage itself is under the instrument, Section 17(1)(c) squarely applies. 11. In the case at hand, as is evident from the recitals in Ext.A1, the mortgage having been created thereunder, it falls within the clutches of Section 17(1)(c) of the Registration Act . The document being an unregistered one it cannot affect immovable property. Consequently no valid mortgage is created thereunder. Hence there cannot be a decree on the mortgage. 12. Now we proceed to consider the merits of the factual contentions regarding the power of attorney and the mortgage over the plaint schedule properties. It is very material and significant to note that, the disputed power of attorney nor even a copy of the same has been produced before Court. The contention of the plaintiff is that, since the power of attorney was a general power of attorney, it was retained by the 4 th defendant, the power holder. Even if that be so, definitely the plaintiff, who had lend such a huge amount, would have definitely obtained an authenticated or at least a mere photostat copy. Pertinently, not even a photostat copy of the power of attorney is produced before the court. 13. To substantiate the claim with regard to the power of attorney, the plaintiff relies on Ext.B30 title scrutiny report given by a lawyer in respect of the property. Pertinently, not even a photostat copy of the power of attorney is produced before the court. 13. To substantiate the claim with regard to the power of attorney, the plaintiff relies on Ext.B30 title scrutiny report given by a lawyer in respect of the property. Going by Ext.A30, one of the documents perused by the lawyer, for the issuance of the certificate was, the original power of attorney executed by the 5 th defendant in favour of the 4 th defendant. The lawyer who issued Ext.A30 was examined as PW2. He would vouch that he has seen the documents as stated in the report. 14. PW2, in his cross-examination, would depose that the scrutiny report was prepared as instructed by the Federal Bank, Ernakulam, Kacheripady Branch. However, Ext.A30 report does not indicate as to whom the report was issued or on whose request the report was issued. If the legal opinion was given for the Federal Bank, then it would have been available with the Bank. The same could have been summoned. However, that is not attempted to. So also, Ext.B30 is the original legal opinion. If the opinion was given to the Bank, then the original would have been in the possession of the Bank and the plaintiff could not have been able to produce the original. PW1, the representative of the plaintiff has deposed that he has no personal knowledge about the transaction. 15. The claim of the plaintiff is that, the power of attorney was one jointly executed by defendants 5 and 6 in favour of the 4 th defendant. However, going by Ext.B30, it is by the 5 th defendant alone. 16. The suit has been filed as against the 5 th defendant showing his address at Kottayam. Even going by the plaintiff's case, the 5 th defendant is abroad at United State of America and has given a power of attorney in favour of his brother, the 4 th defendant. Summons was served on the fifth defendant by substituted service and he was set ex parte. Subsequently, on his application, the ex parte order was set aside. 17. The plaintiff claims that the plaint schedule item numbers 1 to 3 belong to the 5 th defendant and was mortgaged to secure the debt. Summons was served on the fifth defendant by substituted service and he was set ex parte. Subsequently, on his application, the ex parte order was set aside. 17. The plaintiff claims that the plaint schedule item numbers 1 to 3 belong to the 5 th defendant and was mortgaged to secure the debt. However, at paragraph 6 of the plaint it is pleaded thus: “The properties described as plaint schedule properties item No.1(one) to 3(three) belongs to the fifth defendant alone and property item No.4(four) belongs to the sixth defendant. Schedule item No.2 (two) belongs jointly to defendants four and five.” Schedule item No.2 is 24.68 Ares of property in survey No.149/3 belonging to the 5 th defendant under Ext.A5 Exchange Deed executed with the 4 th defendant. Under Ext.A5, 24.68 Ares of property in survey 149/3 which belonged to the 4 th defendant was given to the 5 th defendant in exchange for another 24.68 Ares of property in survey 150/2 which belonged to the 5 th defendant. On the reverse side of the document it is written that a duplicate copy of the document has been prepared. Ext.A5 is seen prepared on a stamp paper worth ? 5. The stamp paper is seen purchased in the name of the 4 th defendant. Therefore, evidently Ext.A5 is the duplicate prepared at the time of execution of exchange deed, which belongs to the 4 th defendant. Therefore, insofar as the 5 th defendant is concerned, the original exchange deed is his title deed and insofar as the 4 th defendant is concerned it is the duplicate prepared along with the original which is his title deed. If the mortgage was to be created in respect of 24.68 Ares of property in survey 149/3 which belongs to the 5 th defendant under Ext.A5 Exchange Deed, then the document to be deposited to create mortgage ought to have been the original exchange deed of the 5 th defendant, and not the duplicate with the 4 th defendant. This shows that there has been no valid creation of mortgage in respect of schedule item No.2 property. This also reveals that the contradictory pleading in the plaint, referred to above, cannot be brushed aside and apparently appears to lack bonafides. 18. With regard to scheduled item No.4, the plaint averment is that the property belongs to the 6 th defendant. This also reveals that the contradictory pleading in the plaint, referred to above, cannot be brushed aside and apparently appears to lack bonafides. 18. With regard to scheduled item No.4, the plaint averment is that the property belongs to the 6 th defendant. That contains two items of properties viz. 48.16 Ares in 558/1 and 32.37 Ares in survey 149/3. Ext.A7 is claimed to be the title deed deposited for the creation of mortgage. Ext.A7 is document number 782/1984. The document stands in the name of the 6 th defendant. However, a reading of the document shows that it does not relate to plaint item No.4 properties. It relates to another property having an extent of 1 acre and 36 cents. Ext.A7(a) is claimed to be English translation copy of Ext.A7. A perusal of the same reveals that it is the English translation of a document bearing No.2416/1978 which stands in the name of the 5 th defendant. The scheduled description in Ext.A7(a) shows that it relates to plaint schedule item No.4 property. Therefore, it is evident that the property scheduled as plaint schedule item No.4, in fact belongs to the 5 th defendant and not to the 6 th defendant as claimed in the plaint. The title deed relating to property has not been deposited. 19. The various circumstances noticed herein before sufficiently probabilises the case of the 5 th defendant that the original documents of title of the 5 th defendant was taken away by the 4 th defendant from the Tarwad house. The contention of the 5 th defendant that he had not given any power of attorney in favour of the 4 th defendant, is seen probable. Though PW1 claimed that there are documents executed by the 5 th defendant in favour of the plaintiff as a guarantor, such documents are not produced. Therefore it can only be concluded that there are no such documents. 20. The trial court, to grant a decree against the properties of the 5 th defendant, has relied on Ext.A30 legal opinion and the evidence of PW2, and also the non-filing of any complaint with regard to the theft of the document. Therefore it can only be concluded that there are no such documents. 20. The trial court, to grant a decree against the properties of the 5 th defendant, has relied on Ext.A30 legal opinion and the evidence of PW2, and also the non-filing of any complaint with regard to the theft of the document. However, in the light of the afore circumstances noticed by us earlier, the mere non-filing of police complaint by the 5 th defendant against his brother 4 th defendant, especially when he is abroad, and in the light of the 5 th defendant having sought to set aside the ex parte decree on the very allegations, is inconsequential. Circumstances emerging in the case discredits Ext.A30 and the evidence of PW2. The trial court has failed to appreciate the aforesaid aspects. 21. Therefore, the properties of the 5 th defendant, which are scheduled as plaint schedule item No.1 to 4 cannot be made liable for the plaint claim. The decree and judgment of the trial court, insofar as the 5 th defendant, is concerned is liable to be set aside. In the result, the appeal is allowed. The decree and judgment of the trial court insofar as it granted a decree against the 5 th defendant and plaint schedule item Nos.1 to 4 are set aside. The suit, insofar as it relates to them, will stand dismissed.