An unregistered mortgage deed can be used for the collateral purpose of showing the character and nature of possession, and secondary evidence of such a document is admissible for the same purpose.

KAN SINGH, J.

( 1 ) THIS is a defendants appeal and arises under the following circumstances.

( 2 ) THE plaintiff-respondents instituted a suit in the Court of Munsif Pali on 23-121968 for the redemption of the mortgage in respect of a house situated in the town of Pali. According to the plaintiffs, the house was mortgaged with possession in Samvat year 1991 for Rs. 199/- with the defendant. It was stipulated that the mortgagor shall not redeem the house for five years and further the mortgagee could spend any amount upto Rs. 100/- for the maintenance of the house, but for spending any amount in excess of Rs. 100/- prior permission of the mortgagor would be necessary. In the circumstances the redemption of the house was claimed for an amount of Rs. 199/-plus Rs. 100/- as expenses for the maintenance of the house. The defendant denied that the property was mortgaged with him. He claimed that it was his own ancestral property. As regards the mortgage deed it was pleaded that the same was inadmissible for want of registration. The learned munsif framed the following issues:--

"1. Whether the plaintiffs mortgaged with possession the suit house for rs. 199/- in Samvat 1991, Mah Vad 1, equivalent to 20-1-1935, and in lieu of that a mortgage-deed was executed by the plaintiffs in favour of the defendant?

2. Whether the terms and conditions mentioned in para 2 of the plaint were of the-alleged mortgage?

3. Whether the plaintiffs are entitled to redeem the suit house? 4. Whether the mortgage-deed, being unregistered, is inadmissible in evidence? Relief?"

( 3 ) ON 19-12-1969, the learned Munsif Shri Bhansali disposed of issue No. 4 holding that the document was inadmissible. The position had been conceded by learned counsel for the plaintiff as well. On 4-3-1971, learned counsel for the plaintiff made an application for permission to lead secondary evidence in respect of the mortgage deed as the same was with the defendant and he was not producing the same. It was submitted that although the mortgage deed was an unregistered one the plaintiff could yet prove the possessory mortgage of the suit property. The learned Munsif heard both the parties and dismissed the application. He was of the view that when the alleged mortgage deed was inadmissible for want of registration the secondary evidence of its contents could not be adduced. On account of some administrative changes the case came on the file of the Civil judge, Pali. The learned Civil Judge in view of the decision of the learned Munsif (now his predecessor) dismissed the suit.

( 4 ) AGAINST the judgment and decree of the learned Civil Judge the plaintiff went up in appeal to the Court of learned District Judge, Pali. It was contended before him by learned counsel for the plaintiff that the mortgage deed though unregistered could be used for the collateral purpose of showing the nature of the defendants possession over the suit property in accordance with, the provisions of Section 49 of the Indian Registration Act and further it could be shown that the defendant had acquired limited rights only by prescription, if at all, on the basis of the mortgage document. This position was contested by the defendant. The learned District judge felt that there was no direct case for enabling a party to lead secondary evidence of an unregistered mortgage deed. This position was conceded even by the learned counsel for the plaintiff who appeared before him. However, referring to certain cases and a passage from A. I. R. Commentaries on the Registration Act the learned District Judge held that there can be no impediment to allow secondary evidence regarding the alleged mortgage deed for proving the nature of possession and the date of possession. Consequently the learned District Judge allowed the appeal, set aside the judgment and decree of the learned Civil Judge and remanded the case to him with the direction that the plaintiffs shall be permitted to lead secondary evidence with respect