Delivery of possession in the case of an unregistered mortgage under Section 59 of the Transfer of Property Act, 1882, can be made at a time subsequent to the execution of the mortgage.

1. This is defendants' appeal against the judgment and decree passed by the Additional District Judge Bundi accepting the appeal and granting a decree in favour of the plaintiff whose suit was dismissed by the trial court.

2. The facts as per the plaint are that one Shri Gopilal Mahajan of Lesarda was owner of the disputed house which was known as Patwariji-Ka- Nohra. The boundaries of the house are given in Para No. 1 of the plaint. Shri Gopilal died in Smt. 2019 and the plaintiff was his sister's son. It is alleged in para No. 2 that the plaintiff is legal representative and heir of Shri Gopilal. It was also alleged that the plaintiff used to live with Shri Gopilal who maintained him and married him and as Gopilal was pleased with the services rendered by the plaintiff Shri Gopilal made a gift of all his moveable and immovable property in favour of the plaintiff on 22.6.1951 by a registered deed. The house in dispute belonged to Gopilal who mortgaged it with possession for Rs. 99/- with the father of the defendants in Smt. 2102. The house remained in the possession of the defendants and their father. The mortgage money was not to bear any interest and the house was not to fetch any rent. Another term of the mortgage was that the mortgagee with the consent of the mortgagor could make constructions in the house and at the time of redemption the mortgagor was to pay Rs. 1/- per sq. ft. to the mortgagee. Some constructions were made and the plaintiff is prepared to pay Rs. 100/- for the same. He wants to redeem the property onpayment of Rs. 99/- and as inspite of notice the defendant did not agree, it became necessary for him to file the suit. The defendants filed a joint written statement in which they denied that Gopilal was the owner of the disputed house. Para No. 3 to 6 of the plaint were not admitted.

3. It was alleged that they spent Rs. 460/- in constructing a room and Rs. 130/- in repairing the wall. It was alleged that the defendants were in possession of the house as owners for generations and the suit was barred by time. It was also alleged that Gopilal never objected to the use of the house by the defendants and as such the plaintiff was estopped from claiming the house as his own. It will thus be noted that the defendant merely wrote not admitted in reply to allegations about the gift in favour of the plaintiff and about his being legal representative and heir of Gopilal. The trial court framed the following issues :

"1- D;k oknpj.k dze 9 esa of.kZr edku dk Lokeh e`rd xksihyky Fkk\ 2- D;k oknh e`rd xksihyky dk dk;eeqdke o okfjl gS\ 3- D;k mDr e`rd xksihyky ds pj.k dze 9 esa of.kZr edku iksl l0 2002 esa 99 dynkj esa izfroknhx.k ds firk dtksM ds ikl okn pj.k esa of.kZr 'krksZa ds lkFk jgu j[kk Fkk\ 4- D;k mDr e`rd us fnukad 22-6-51 dks viuh leLr py o vpy lEif�k dks oknh ds gd esa c['kh'k djokrs gq, jht djknh\ 5- D;k izfroknh us 5@6 o"kZ iwoZ ,d ?kj [ksUn iksVk 460 esa crk;k gS vkSj mldk okn ij D;k vlj gS\ D;k izfroknh us ,d fxjh gqbZ nhokj 1301@& :0 [kpZ djds cukbZ Fkh vkSj bldk Hkh okn ij D;k izHkko gS\ 6- D;k oknh dks mDr edku dks jgu eqDr djkus dk vf/kdkj gS\ 7- D;k izfroknh dk dCtk mDr edku ij oa'k=ekxr ls Lokeh dh {kerk esa pyk vk jgk gS vkSj bl dkj.k nkok vof/k ckgj gS\ 8- D;k izfroknh mDr edku dks Lokeh dh Hkkafr dke esa ys jgs gS vkSj [kqYe [kqYyk ?kj cl x;k gS vkSj xksihyky us vkif�k ugha dh vr% ,LVksIM dk fizfUliy ykxw gksrk gSA 9- D;k izfroknh fo'ks"k gtkZ izkIr djus dk vf/kdkjh gSA 10- lgk;rkA"

4. Under issue No. 1 and 3 the learned Munsif held that the execution of the mortgage was proved and that deceased Gopilal was owner of the disputed house and he had mortgaged it with the father of the defendants for Rs. 99/- with possession on the conditions mentioned in the plaint. As the original mortgage deed was in the possession of the defendants and was not produced by them the plaintiff was allowed to lead secondary evidence on this point and the evidence on this point and the evidence of