Kan Singh, J.
1. This is a defendant's appeal and arises under the following circumstances.
2. The plaintiff-respondents instituted a suit in the Court of Munsif Pali on 23-12-1968 for the redemption of the mortgage in respect of a house situated in the town of Pali. According to the plaintiffs, the house was mortgaged with possession in Samvat year 1991 for Rs. 199/- with the defendant. It was stipulated that the mortgagor shall not redeem the house for five years and further the mortgagee could spend any amount upto Rs. 100/- for the maintenance of the house, but for spending any amount in excess of Rs. 100/- prior permission of the mortgagor would be necessary. In the circumstances the redemption of the house was claimed for an amount of Rs. 199/-plus Rs. 100/- as expenses for the maintenance of the house. The defendant denied that the property was mortgaged with him. He claimed that it was his own ancestral property. As regards the mortgage deed it was pleaded that the same was inadmissible for want of registration. The learned Munsif framed the following issues:--
'1. Whether the plaintiffs mortgaged with possession the suit house for Rs. 199/- inSamvat 1991, Mah Vad 1, equivalent to 20-1-1935, and in lieu of that a mortgage-deed was executed by the plaintiffs in favour of the defendant?
2. Whether the terms and conditions mentioned in para 2 of the plaint were of the-alleged mortgage?
3. Whether the plaintiffs are entitled to redeem the suit house?
4. Whether the mortgage-deed, being unregistered, is inadmissible in evidence?
3. On 19-12-1969, the learned Munsif Shri Bhansali disposed of issue No. 4 holding that the document was inadmissible. The position had been conceded by learned counsel for the plaintiff as well. On 4-3-1971, learned counsel for the plaintiff made an application for permission to lead secondary evidence in respect of the mortgage deed as the same was with the defendant and he was not producing the same. It was submitted that although the mortgage deed was an unregistered one the plaintiff could yet prove the possessory mortgage of the suit property. The learned Munsif heard both the parties and dismissed the application. He was of the view that when the alleged mortgage deed was inadmissible for want of registration the secondary evidence of its contents could not be adduced. On account of some administrative changes the case came on the file of the Civil Judge, Pali. The learned Civil Judge in view of the decision of the learned Munsif (now his predecessor) dismissed the suit.
4. Against the judgment and decree of the learned Civil Judge the plaintiff went up in appeal to the Court of learned District Judge, Pali. It was contended before him by learned counsel for the plaintiff that the mortgage deed though unregistered could be used for the collateral purpose of showing the nature of the defendant's possession over the suit property in accordance with, the provisions of Section 49 of the Indian Registration Act and further it could be shown that the defendant had acquired limited rights only by prescription, if at all, on the basis of the mortgage document. This position was contested by the defendant. The learned District Judge felt that there was no direct case for enabling a party to lead secondary evidence of an unregistered mortgage deed. This position was conceded even by the learned counsel for the plaintiff who appeared before him. However, referring to certain cases and a passage from A. I. R. Commentaries on the Registration Act the learned District Judge held that there can be no impediment to allow secondary evidence regarding the alleged mortgage deed for proving the nature of possession and the date of possession. Consequently the learned District Judge allowed the appeal, set aside the judgment and decree of the learned Civil Judge and remanded the case to him withthe direction that the plaintiffs shall be permitted to lead secondary evidence with respect to the alleged mortgage deed for the purpose of proving the nature of possession and the date of possession as also other evidence that could legally be adduced in respect of the issues of which burden was on the plaintiffs. Further he directed that the defendant shall be given an opportunity to adduce his own evidence which he could legally adduce and then the case shall be disposed of in accordance with law.
5. Learned counsel for the appellant has questioned the correctness of the view taken by the learned District Judge. He contends that the alleged mortgage deed being inadmissible in evidence for want of registration no secondary evidence could be adduced regarding the contents thereof. He relies on Sawa v. Kuka, AIR 1951 Raj 66 and Lachhmi Narain v. Kalyan, AIR 1960 Raj 1 (SB).
6. In the first case Bapna, J. held that if the original document was inadmissible in evidence owing to its being unregistered, secondary evidence is also inadmissible. Section 65 of the Evidence Act pre-supposes that but for one or more of the barriers to its production stated in the section, the document would have been capable of proving its contents under Section 64 read with Section 62. Consequently it would be a manifest absurdity to hold that secondary evidence may be given to establish a fact proof whereof by primary evidence is forbidden.
7. The second case was a decision by a Full Bench of which Bapna, J. was a member. The position was thrashed out in detail and the Full Bench indicated the limits within which an unregistered mortgage deed could be used. It was observed:--
'By virtue of Section 28 of Limitation Act the limited right of mortgagee can be acquired by adverse possession. It can be so acquired even if a mortgagee has obtained possession under a void or inoperative mortgage-deed. The provisions of the Transfer of Property Act (Section 59) are not in any way affected on account of acquisition of rights by prescription. The rights of the parties can be regulated by law if no valid agreement exists. It is not substituting a new contract but giving effect to a relationship created by the operation of law. The provisions of Section 49 of the Registration Act or Section 91 of the Evidence Act also are not affected because an unregistered document can be availed of for the purpose of showing character and nature of possession if the possession is transferred under such document. When considering the question of Section 28 in relation to Article 144, the intention of the person holding the possession becomes relevant, but under other Articles intention may have no relevance at all. Thus a suit for redemption of the mortgage created by the operation of law is governed by Article 148 and the period will run after theexpiry of 12 years from the date when possession was taken under such mortgage deed.'
8. It will be observed from the above that in spite of the mortgage document being inoperative for want of registration the same can be availed of for the purpose of showing the character and nature of possession, if the possession has been transferred under the document. When the question of possession is to be considered the intention of the person holding the possession would be relevant. Once the primary evidence of an unregistered document is receivable for the collateral purpose of proving the nature of the possession and with what intention the possession was held then if the necessary conditions for adducing secondary evidence of such document exist then I should think the secondary evidence of the document for the self-same purpose namely, that of showing the nature and character of the possession and with what intention the possession was held can be adduced. The learned District Judge has, therefore, reached the correct conclusion.
9. The appeal is, therefore, hereby dismissed, but the parties are left to bear their own costs.