MODI, J.—These are two connected appeals which arise out of the judgment and decree of the learned District Judge, Jhunjhunu dated the 18th of October, 1960 in a suit for redemption of a mortgage. Appeal No. 125 of 1961 has been filed by the mortgagor Ali Mohammad while Appeal No. 144 of 1961 by the mortgees. I propose to dispose of both these appeals by a single judgment.

2. It is common ground between the parties that the plaintiff Ali Mohammad along with his mother Mst. Laxmi made a mortgage of the two shops in suit in favour of the defendants to secure a loan of Rs. 1565/- by a registered mortgage deed dated 22nd August, 1927 vide Ex. A-3. The mortgage was of a usufructuary character. The plaintiff, therefore, claimed to redeem the shops in suit on payment of the mortgage money amounting to Rs. 1565/-. The defendants resisted the suit. In addition to the mortgage-deed Ex. A-3 they urged that by another document Ex. A-l dated Kati Sudi 9, Smt. 1987 corresponding to some time in November, 1931, the mortgagor and his mother Laxmi had sold the roof (or as it is stated in the document Dagla) on his shops to them. It appears from the document that there was a medi on the top of the shops which had fallen down owing to rains whereupon the mortgagees asked the mortgagor to repair the roof of the shops or to redeem them by paying off the mortgage money. To this the reply of the mortgagor was that he was in no financial position to either redeem the shops or to invest any money on the repairs thereof and, therefore, he was willing to sell and actually sold the roof to them so that they were free to raise any kind of construction thereon and it was made perfectly clear in this document that thereafter, the mortgagor would lay no claim whatever to the roof or to the construction which they would raise on it. As it transpired this document was not registered. It may also be pointed out at this stage that the mortgagor Ali Mohammad was a minor at the time of the execution of the document. Be that as it may, the case of the defendants was that by this document they had become owners of the roof and the construction viz., chobara which they had built on it at cost of some two thousand rupees. Apart from this the defendants also claimed a sum of Rs. 886.12.6 which it is alleged, they had advanced to the mortgagor as a further loan, and another sum of Rs. 425/- which was spent by them by way of repairs to the suit shops. The claim for both these amounts is sought to be supported by two writings Exs. A-5 and \-2 respectively dated 24.10.1938 and 14.1.1942 (Kartik Sudi 1, Smt. 1995 and Mah Sudi 3, Smt. 1998), but admittedly both these documents are also unregistered. The trial court awarded a preliminary decree for redemption in favour of the plaintiff on payment of the following sums :

(1) Rs. 1565/- the mortgage money.

(2) Rs. 886.12.6 as additional mortgage dues.

(3) Rs. 425/- as cost of repairs, and

(4) Rs. 1682/- as the cost of construction of the chobara; in all amounting to Rs. 4558.12.6.

3. Both parties went in appeals to the learned District Judge, Jhunjhunu which were disposed of by a single judgment which is now impugned before me. By this judgment the defendants mortgagees appeal was partly allowed and redemption was decreed on payment of the sums of Rs. 1565/-, Rs. 886.12.6 and Rs. 425/- as aforesaid, but the remaining amount of Rs. 1682/- which had been allowed by the trial court as cost of construction of the chobara, was disallowed and the defendants were left free to remove their materials of it. The defendants appeal wherein, they claimed the ownership of the roof of the shops and the chobara which had been constructed by them thereon, was dismissed. Aggrieved by this decision, both parties have filed appeals to this Court as already stated.

4. I shall take up the defendants appeal first. The sole point raised for determination in this appeal is about the alleged sale of the roof of the shops by the plaintiff to the defendants by t

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