THE TRANSFER OF PROPERTY ACT 499
If the documents show no kind of title, no mortgage is created—Tax receipt—Plan—not documents of title.
If the deeds are lost, copies may be deposited.
(ii) If the deeds are already deposited by way of mortgage, they can, by oral agreement, be made a security for further advance. It is not necessary that they should be handed back and redeposited.
17 All. 252.
25 Cal. 611.
III. I NTENTION .
The intention that the title-deeds shall be the security for the debt is the essence of the transaction.
Mere possession is not enough without evidence as to the manner in which the possession originated so that a contract may be inferred.
23 I.A. 106; 38 Bom. 372.
1 Rang. 545.
If it is in contemplation of the parties to have a legal mortgage prepared and if the title-deeds are deposited for that purpose only, the deposit does not create an equitable mortgage.
But although the deposit is for the purpose of the preparations of a legal mortgage, there may also be an intention to give an immediate security, in which case the deposit creates an equitable mortgage.
The question is whether mere possession coupled with debt does not raise an inference that it is a mortgage ? There is a difference of opinion but the better opinion seems to be as between creditor and debtor possession coupled with debt raises a presumption in favour of a mortgage.
IV. T ERRITORIAL R ESTRICTIONS .
- This kind of equitable mortgages can be created only in certain towns.