K. L. BAPNA, J.

( 1 ) THIS case has been referred to a Division Bench by a learned Judge sitting in single Bench, before whom the case first came for hearing,

( 2 ) THE respondents Dhulilal and Chandralal instituted a suit in the court of the munsif, Mainwa, on the allegations that the first defendant Sukh-deva had mortgaged a mango tree in village Jaja-war, situated in the land of Dewlawala well, and later on by document of Kartik Sudi 12, Smt. Year 1998 (November, 1941), the said mortgagor transferred his ownership of the mango tree to the plaintiffs for a consideration of Rs. 72/-, the stipulation being that the plaintiffs will continue to enjoy the fruits of the tree so long as it will exist. It was alleged that the said defendant Sukh-deva wrongfully purported to sell the same tree by registered document of 7-11-1950 to defendants Nos. 2 to 5, bhanwarlal, Birdhilal, Mohanlal and Sualal. The plaintiffs instituted the suit for decla-ration that the said document was null and void, as the vendor had no interest left in the tree which could be transferred to defendants Nos. 2 to 5. The findings of the trial court were that the tree had been mortgaged with the plaintiffs and thereafter the mortgagor executed the deed of transfer in favour of the plaintiffs dn Kartik Sudi 12 of Smt. Year 1998, but the said transfer was invalid, owing to non-registration. It was further held that the defendants 2 to 5 had taken possession of the mango tree after notice of the prior sale to the plaintiffs, but as a result of the finding of invalidity of the sale to the plaintiffs, the suit was dismissed by judgment dated 14-12-1951.

( 3 ) ON appeal the learned Civil Judge of Bundi was of opinion that the transfer in favour of the plaintiffs by document of Smt. Year 1998 was of tangible immovable property of the value of under Es. 100/- and the document did not require registration. He held that the plaintiffs being already in possession as mortgagees, the recitals contained in the document of Smt. Year 1998, amounted to delivery of property contemplated by Section 54 of the Transfer of Property Act, and made the sale valid and complete. As a consequence he held that the sale made by Sukhdeva in favour of defendants 2 to 5 was not valid, as the vendee was not left with any interest in the property after the prior sale to plaintiffs. He accordingly allowed the appeal, set aside the judgment and decree of the Munsif, Nainwa, and declared the sale-deed of 7-111950, to be ineffective against the rights and interest of the plaintiffs.

( 4 ) THE defendants Bhanwarlal and Mohanlal have filed this appeal and two others. Birdhilal and Suwalal have been joined as pro forma respondents. It was contended that the transfer in favour of Dhulilal and Chandralal was of an intangible immovable property and could be done only by a registered instrument as provided in Section 54 of the Transfer of Property Act. On behalf of the respondents it was urged that the Transfer of Property Act was not properly brought into force in the former State of Bundi and in any case the transfer was of tangible immov-abe property and had been properly effected by the execution of the document of Smt. Year 1998, which purported to transfer delivery of possession also.

( 5 ) THE learned Single Judge while referring the case pointed out that there were two questions involved in this appeal.

(1) Whether the Transfer of Property Act was properly brought into force in the former Bundi State by Robkar No. 90 dated 31-7-1950 issued from the office of the Diwan of Bundi State? (2) If so, whether under Section 54 of the Transfer of Property Act the interest of a usufructuary mortgagor is a tangible immovable property or intangible property and if it is tangible immovable property whether the transfer of it to this mortgage for a sum less than Rs. 100/- by an unregistered document is valid?

( 6 ) AS there was difference of opinion in the High Court of India on the second point, the