Bapna, J.—This is a second appeal by the defendants is a suit for redemption.

2. The respondent, Ram Hans, sued the appellants Ram Chandra and Uda in the Court of Civil Judge, Hindaun, on the 28th of July. 1945, on the allegations that a Kham Bakhi containing 13 pators described in the plaint, situated at Hindaun. was mortgaged by Kardev, predecessor-in-title of respondent No. 1, and Patriya, respondent No.2, with Ramhet as security for a loan of Rs 200/- on Sawan Badi 14, Svt. 1989 (25th July, 1930), and a certain deed was executed, but it was not registered. The defendants were stated to be the legal representatives of Ramhet, add the plaintiff claimed.

(1) redemption of the said mortgage,

(2) possession of the property on payment of Rs. 200/- to the appellants, and

(3) costs of the suit.

3. The appellants contested the suit, denied the mortgage, and pleaded that the agreement was to hand over pators on nonpayment of loan of Rs. 200/-, and that Hardev delivered the pators to the defendants in pursuance of the contract. It was pleaded further that the loan carried interest at 18% per annum and certain repairs were also done to the property so that the defendants debt now outstanding was Rs. 1476/14/-.

4. The trial court held that it was a case of mortgage by conditional sale, but as the defendants had not taken any proceedings for foreclosure, the plaintiff was entitled to redeem the property, and that repairs had not been proved, but the defendants were entitled to interest at the stipulated rate subject to a maximum of Rs. 400/- according to the rule of damdupat. It accordingly passed a decree for redemption of the property subject to payment of Rs. 600/- inclusive of the principal and interest on the loan secured by the mortgage.

5. On appeal the learned District Judge held that there was no proof of the mortgage and the document Ex. D. 2, which could make out a case of mortgage was unregistered and had not been admitted by the plaintiff and was, therefore, neither, admissible nor could be taken to be a proof of the mortgage. He accordingly accepted the appeal and dismissed the suit.

6. On second appeal, learned counsel for the plaintiff admitted the genuineness of Ex. D.2, and the High Court of the then Jaipur State remanded the case to the District Judge for a fresh decision of the case after taking into consideration the said document. The learned District Judge by his Judgment, dated 31st of May, 1946, held that the decree of redemption had been rightly made by the Munsif, but the amount to be paid could not exceed Rs. 400/-, the Munsif having been held to have misunderstood the rule of damdupat. The defendants have come in appeal.

7. It was argued by learned counsel for the appellants the two courts had considered the document Ex. 2 as a mortgage by conditional sale, and on that finding suit should have been dismissed, for the right given to a mortgagor to redeem the property, unless extinguished by the act of the parties or decree of a court, granted by sec. 60 of the Transfer of Property Act did not exist before the enforcement of the Jaipur Transfer of Property Act, 1943, and the Mortgagor by delivering the property made an absolute transfer in favour of the mortgagee, which was not invalid by any law in force at the time.

8 The aforesaid argument would make it necessary to consider whether a mortgagor could by the act of creating a mortgage give up his right of redemption on the happening of certain contingencies. It is, however, not necessary to do so, for the finding of the two courts as to the interpretation of the document Ex. 2 has not been correctly made. The relevant portion of the document, when translated into English, is as follows :—

"Mortgage executed by Hardev in favour of Ramhet in lieu of Rs. 200/-borrowed where for 12 gah pators have been written (mortgaged). The agreement to pay money is of Sawan Sudi 14. If money is not paid on due date, possession will be given on 5 gah pators. and possession to be given o

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