Wanchoo, C.J.—This is a second appeal by two out of four defendants against the judgment and decree of the Civil Judge, Sojat, in a suit for redemption of mortgage. It has been referred to a Division Bench by a learned single judge as an important question of law is involved in it.

2 Respondents Nos 1 and 2 are plaintiffs. Their case was that their father and uncle had mortgaged a house situate in village Sawrad with Sobha, Tiloka and Bhoma, predecessors-in-title of the defendants for Rs. 209/- in Svt. 1967. The said mortgage was to be redeemed after a period of 31 years. When the plaintiffs sought to redeem the property after the expiry of this period, the defendant refused to accept the money and hand over possession. Consequently, the plaintiffs brought this suit for redemption against the defendants. Two of the defendants, namely Bhania and Benia, sons of Tiloka admitted the plaintiffs claim. The other two, Hansia and Achalia, contested this suit. They denied the mortgage and asserted that the property belonged to themselves. They also pleaded with respect to the document produced in support of the mortgage by the plaintiffs that as the document was not registered, it was of no avail to the plaintiffs.

3. The suit of the plaintiffs was for redemption. The plaint, as it was drafted, was a pure and simple plaint in a suit for redemption based on the mortgage of Svt. 1967. The prayer was for redemption and possession of the house in dispute.

4. Three issues were framed by the trial court, of which two are relevant for our purposes. They are these—

(1) Did the predecessors of the plaintiffs mortgage with possession the house in suit for Rs. 209/- in Svt. 1967 to the predecessors of the defendants ?

(2) Whether the mortgage deed in suit was compulsorily registrable.

5. The trial court held that the mortgage in suit was founded on an unregistered mortgage-deed which was inadmissible in evidence and, therefore, the suit was dismissed. There was an appeal by the plaintiffs which was allowed and a preliminary decree for redemption was passed. The appellate court held that the unregistered mortgage-deed could be referred to for looking into the character of possession and also for determining the quantum of interest for which the defendants has prescribed under the invalid mortgage. Hence this second appeal.

6. The main question, therefore, which falls for decisions is wether a suit for redemption can be maintained on an unregistered mortgage deed of this kind. The document in question was executed in Svt. 1967 i. e. in 1910 A.D. and we have to look to the law in force the former State of Marwar in this matter at that time. There was no Transfer of Property Act in force at that time. There was, however, a Registration Act in force of 1899. Under Sec. 7 of that Act as amended on 1st of October 1907, any usufructuary mortgage of the value of Rs. 200/- and upwards was compulsorily registrable. Further, under sec. 18 of that Act, it was provided that if any unregistered document, which was compulsorily registrable, was produced in court, it would not be admitted in evidence. Thus the mortgage-deed in suit, being compulsorily registrable under the Law then in force, was inadmissible in evidence to prove its terms. The present suit was filed in January, li49 By that time, the Marwar Registration Act, 1934 had come into force and contained sec. 49 of the Indian Registration Act. Sec. 18 of the Marwar Law of 1899 may be taken to be more or less equivalent to sec. 4 of the Indian Registration Act. In addition to that, the Transfer of Property Act also came into force in Marwar from the 5th of March 1949 and sec. 59 provides that where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

7. The lower appellate court has held, relying on Purusottam Das vs. S.M. Desouza (1) t

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