Dave, J.—This is a plaintiffs second appeal in a suit for redemption of a shop situated in the Sadar Mandi, Jaisalmer. The boundaries of the shop are given in the plaint and need not be repeated here. The suit was originally brought by Baboolal son of Chintamandas, but later on Phoolchand and Sujansingh were also impleaded as plaintiffs. The plaintiffs case was that the said shop was mortgaged by Chintamandas, father of the first plaintiff, with the defendant Nathmals father Mool-Chand for Rs. 457/- on Posh Vadi 3 Samvat 1981, and he was also placed in possession thereof. Thereafter, on 9th of November 1949, the plaintiff gave a notice to the defendant through the court for the redemption of the property, but he did not give any reply. It was therefore passed that Rs. 475/- which the plaintiffs had deposited in the court should be given to the defendants and they should be ordered to hand over possession of the property to the plaintiffs.

2. One of the defendants, namely Ram-lal presented his written statement on 26th of May, 1946. He admitted the fact that Chintamandas had mortgaged his shop with the Firm Moolchand Ramlal for Rs. 475/-. He however, pleaded that he had separated him self from the said Firm in the Samvat year 1986, and that all the property and papers relating to the said firm were in the possession of his brother defendant No. 2 Nathmal. It was prayed that he had therefore, nothing to do with the disputed property and the suit against him should be dismissed. The second defendant. Nathmals reply was that the disputed shop was never mortgaged by Chintamandas with his (defendants father) that it was his ancestral property and he was in possession thereof for several generations. He raised other objections also on the basis of which the following six issues were framed by the trial court:

(1) Whether the shop in dispute belonged to the plaintiffs and was mortgaged with the defendants on Pos Vadi 3 Samvat 1981.

(2) If it is mortgaged, then for what amount.

(3) Whether the shop in dispute is the ancestral property of the defendant and the defendant has been in possession as owner for more than 60 years.

(4) Whether the suit is not within time.

(5) Whether the suit cannot be instituted without obtaining a succession certificate.

(6) What reliefs the parties are entitled to?

3. The trial court decided all the issues in the plaintiffs favour and decreed the suit on 16th of February 1951. Defendant Nathmal went in appeal against this decree. The learned Civil Judge found that the mortgaged deed was inadmissible in evidence and inoperative because it was not got verified according to the circular order issued by the Jaisalmer State on 25th of April 1920. It was further remarked that the original mortgage-deed being inadmissible, secondary evidence regarding the terms of the mortgage was also inadmissible. He therefore held that specific mortgage was not proved and so the decree of the trial court was reversed and the suit was dismissed,

4. It is against this judgment and decree dated the 3rd of May, 1951 that the plaintiffs have come here in appeal.

5. This appeal was first listed for hearing before a Single Bench of this Court. It was urged by the appellants learned advocate before that Bench that the Circular dated the 25th of April, 1920 issued under the authority of the Diwan of that State could not have the force of law. The learned Judge considered it to be an important point to be decided by a Division Bench and, therefore, it is on his reference that this case has come before us.

6. First question which comes for our determination is whether the circular of the 25th of April 1920 issued under the authority of the Diwan of the Jaisalmer State is a valid piece of legislation. The said circular purports to have been issued from Mehkmakhas Home Department, Shri Darbar Jaisalmer on 25th of April 1920. It begins with saying that in the case of a sale of immovable property in the Jaisalmer State, the parties to the transaction ha

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