Michael Westropp, C.J.
1. The object of the first defendant (appellant) in giving the instrument Exhibit 17 in evidence is to show that Kazi Muhammad's mortgage lien on the land has been extinguished, and was so previously to the alleged transfer or assignment of that lien to the plaintiff; and if the document be genuine and admissible in evidence, it would, no doubt, be efficacious for that purpose, and a complete defence to this suit, which is maintainable only on the hypothesis that the mortgage to Kazi Muhammad is a still existing and unsatisfied security.
2. We deem it unnecessary to enter upon the question of the sufficiency of the stamp, inasmuch as we think, whether we look to Act XX of 1866 or Act VIII of 1871, that the non-registration of Exhibit 17 renders it inadmissible for the purpose for which it is sought to be given in evidence in this suit.
3. Act XX of 1866, Section 17, requires that the following instruments be registered:
Clause 1. Instruments of gift of immoveable property.
Clause 2. instruments (other than an instrument of gift) which purport or operate to create, declare, assign, limit, or extinguish, whether in present or in future, any right, title, or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.
Clause 3. Instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title, or interest; and
Clause 4. Leases of immoveable property for any term exceeding one year.
4. We are clearly of opinion that Exhibit 17 falls within Clauses 2 and 3 of this seventeenth section,--within Clause 2 because it purports to extinguish the right, title, and interest of Kazi Muhammad in the land--and within Clause 3 because it acknowledges the receipt of Rs. 350 as consideration on account of the extinction of his right, title, and interest in the land. Section 49 enacted that no instrument required by Section 17 to be registered shall be received in evidence in any civil proceeding in any Court, or shall be acted on by any public servant as defined in the Indian Penal Code, or shall affect any property comprised therein, unless it shall have been registered in accordance with the provisions of this Act.' This clearly renders Exhibit 17 inadmissible in evidence for such a purpose, as it has been offered in evidence in this suit.
5. The first three clauses in Section 17 of the more recent Registration Act (VIII of 1871) are substantially the same as the first three clauses in Act XX of 1866, Section 17. The 49th section of Act VIII of 1871 enacts that no document required by Section 17 to be registered shall affect any immoveable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered in accordance with the provisions of this Act.'' Even supposing, but not actually deciding, that, according to Guduri v. Rapaka (7 Mad. H.C. Rep., 348), the law applicable to the admissibility in evidence of Exhibit 17 is the more recent Act (VIII of 1871); yet inasmuch as that exhibit is offered in evidence for the purpose of showing a transaction whereby it is contended that the mortgage lien of Kazi Muhammad became extinguished, and thus affecting the land, we are of opinion that Exhibit 17, being one which under Clauses 2 and 3 of Section 17 ought to have been registered, but was not, is not admissible on behalf of the defendants in evidence.
6. Several cases have been cited to us on behalf of the first defendant in favour of the admissibility of Exhibit 17; but none of them appeared to us to meet the exigency of the position.
7. Venkatarama v. Chinnathumbu (7 Mad. H C. Rep., 1) was a suit by a mortgagor to recover from a mortgagee a, sum paid (on redemption) to the latter in excess of what was really due to him. The claim merely affected the mortgagee personally, and the unregistered indorsement on the mortgage bond of the amount paid was not offered in evidence as a transaction affecting the land, but as proof of the amount paid. Neither party denied that the mortgage lien had been extinguished.
8. Guduri v. Rapaka (7 Mad. H.C. Rep., 348), already mentioned, was a suit against the mortgagors personally for the money, the plaintiffs having waived all claims against the land.
9. The absence (in the report) of the documents, upon which the case quoted from 20 Cal. W.R. 334, Civ. Rul., (Sheikh Gugunfur Ali v. Mahomed Yaseen) was decided, prevents us from being able  to understand that case fully. This difficulty is increased by the omission of the learned Judge, as reported, to notice the bearing of Clause 3 of Section 17 of Act XX of 1866 upon the receipt which was there admitted in evidence. The learned Judge is, in the concluding portion of his judgment, reported as having said that the receipt did not fall within Clause 2 of that section, but he was silent as to Clause 3.
10. In Mahad bin Danapa v. Dari (supra, p. 196 and note (1) ibidem) my brother Kemball and I refused to permit an unregistered yadi to be given in evidence by a defendant in defence of her possession. The yadi stated that a sum of Rs. 483 had been paid to the plaintiff on account of the sale by him to her of the land. In fact, it was a receipt for money, but stated in what respect the money had been paid, namely, as part of the consideration for the sale of the land.
11. We agree accordingly with the Assistant Judge in holding the receipt Exhibit 17 to be inadmissible in evidence. Any other decision would, in our opinion, defeat the manifest intention of the Legislature.
12. But the appellant's pleader pointed out that there is some oral evidence of the payment, although the Assistant Judge has said that 'the receipt is the only evidence that Kazi's mortgage lien was extinguished.' The important circumstance, too, that Kazi Muhammad, before he conveyed his alleged rights as mortgagee to the plaintiff, had given up, or been put out of, possession, requires to be carefully considered and investigated. That he is and was out of possession, cannot be denied, and the burden lies upon the plaintiff, who claims, under him, to explain that fact. If Kazi Muhammad voluntarily surrendered his interest as mortgagee to the first defendant, the mortgagor, or to the second defendant as his nominee, there would have been nothing left in Kazi Muhammad to pass by his subsequent conveyance to the plaintiff. The fact that Kazi Muhammad was out of possession at the date of that conveyance, lends probability to the case put forward by the first defendant, unless that fact be satisfactorily explained by evidence on behalf of the plaintiff.
13. The appellant (first defendant) by his durkhast No. 52 asked for permission to examine other witnesses, and we think that, relying, as he probably did, on his Exhibit 17 to prove his case, he may have neglected to summon as many witnesses as he otherwise would have done to show that Kazi Muhammad's mortgage had been paid off and his lien extinguished. We are of opinion that he ought to have an opportunity of proving his case by oral testimony if he can, and may summon such witnesses as he may be advised to call for that purpose, and may give such other (if any) evidence as may be available, such as books, accounts, etc., and as may be legally admissible.
14. There should be a distinct finding of the re-trying Court on the allegation that the plaintiff's case is fraudulent and collusive.
15. The seventh point in the memorandum of special appeal (i.e., as to the plaintiff's vendor having been out of possession at the time of the sale to the plaintiff) not having been made in either of the Courts below, is too late.
16. We reverse the decree of the Assistant Judge, and remand this cause for retrial by the District Court on the merits in accordance with the foregoing observations. Costs of both appeals and of the suit are to be within the discretion of the re-trying Court.