An unregistered mortgage deed cannot be used to enforce the terms of the mortgage, but it may be used to support a claim for money arising out of a separate agreement or personal undertaking to pay the loan.

BAPNA, J.

( 1 ) THESE two appeals arise out of a single suit for recovery of money.

( 2 ) KISHAN Lal instituted the present suit on 15-5-1948, on the allegations that he had dealings with Pabu Dan and Kami Dan, defendants Nos. 1 and 2, and on 5-111938, the previous account was taken. Some more advance was made, and the two defendants executed a khata of Rs. 1701 and for repayment of the amount, they hypothecated their one-fourth share in the income of Dakaniyawas, and their half share in Kothi Phalsawali, situated in the same village, for 17 years from sarnwat 1995 to Sam-wat 2012, by way of Baraskatti, and it was stipulated that if the debtors did not permit the recovery of the income of this land in any year, they would pay Rs. 200 for that particular year. It was alleged that Chandi Dan and Ram Karan Dan stood as sureties for the carrying out of the aforesaid agreement. It was then alleged that the plaintiff recovered the income of the hypothecated land till Samwat 2001, but thereafter the debtors did not permit the recovery of the income from the hypothecated, land. The plaintiff claimed Rs. 600 for three years, Samwat 2002, Samwat 2003 and Samwat 2004, according to the agreement.

( 3 ) PABU Dan and Kami Dan denied execution of the Khata or having any dealings with the plaintiff at any time. Chandi Dan and Ram Karan Dan had both died, and their legal representatives Ranmal Dan son of Chandi Dan, and Gopal Dan son of ram Karan Dan, who were made defendants in the suit, also denied the execution of the Khata or having anything to do with the debt in question. A further plea was raised by both sets of defendants that the agreement amounted to a mortgage, and the document being unregistered, it was not admissible in evidence, and the agreement was not enforceable at law.

( 4 ) SEVERAL issues were framed by the trial Court, and it was held that the execution of the Khata Ex. 1 for Rs. 1701 with several stipulations mentioned therein had been proved to have been executed by Pabu Dan and Kami Dan as debtors and by Chandi Dan and Ram Karan Dan as sureties. No specific plea as to want of consideration was taken, and there is no clear finding, but the reference to the various documents held to have been proved impliedly amounts to a finding that the consideration as alleged in the said documents had been proved. Ex. 3 is an entry in the account book of the plaintiff, and shows that the previous amount due was Rs. 550, Rs. 150 were added by way of interest, and Rs. 601 were advanced in cash on that day, and Rs. 400 were mentioned as advances to the debtors but were to be kept separately with the plaintiff to cover cost of purchase of articles to be utilised for the Nukta of Kalu Dan. Documents Exs. 5 and 6 showed that articles were purchased for the said sum of Rs. 400. As a matter of fact the total amount of the articles supplied came to a little over Rs. 400. It was held that Ex. 1, which formed the basis of the suit, was not a mortgage deed, and did not require registration, and was admissible as a bond after payment of duty and penalty. The Court, however, held that the plaintiff was only entitled to Rs. 100 per annum for the disturbance of po session, but not the extra Rs. 100 per year by way of expected profit. It, however, gave the plaintiff interest at Re. 1 p. m. on the amount due every year, and gave a decree for Rs. 376 with costs, and future interest at 6 per cent, per annum.

( 5 ) THE plaintiff filed an appeal for the sum disallowed, and the defendants filed cross-objections for setting aside the decree. Both were dismissed by the learned additional District Judge, Jaipur, by Judgment dated 6-12-1930. The defendants have filed a second appeal, which is No. 82 of 1951. The plaintiffs appeal is No. 117 of 1951.

( 6 ) THE Learned counsel for the defendants appellants contended that the lower courts had committed error in holding that the execution of the document had been proved. It was contended in the first