1. The second appeal arises out of a suit for redemption of an otti. Various defences were raised and were made the subject of issues. The 4th issue was 'Is the suit for partial redemption sustainable.' The contention of the defendants was that there was another item which was the subject of otti and that also ought to have been made the subject of the suit. The District Munsif found that that item had been sold in Court auction as early as 1894 and was being held by strangers. He said:
There is thus nothing to redeem so far as that item is concerned. It is, therefore, apparent, as urged by the plaintiffs, that the 2nd item was included in Ex. A simply in order to get the document registered in the Payoli Sub-Registrar' s Office and for no other purpose and the parties also understood it in that light.
2. He found the issue for the plaintiff. On appeal the District Judge states in para. 2 of his judgment:
The preliminary point for determination in this appeal is whether the otti, Ex. A, sought to be redeemed is invalid.
3. He found Ex. A invalid and dismissed the plaintiffs' suit.
4. In the first place, there is no issue in the case as to whether Ex. A was invalid, and I do not think that this is a point which should be allowed for the first time in appeal. But assuming it may be allowed to be raised it cannot bo disposed of without calling for fresh evidence because it has been held in several decisions, I may mention Venkata Lakshmikantaraju Garu v. Peda Venkata Jagannadharaju Garu A. I. R. 1924 Mad. 281 and Mamillapalli Veersalingham v. Ponnukollu Kondayya A. I. R. 1925 Mad. 430, that unless both the parties to a document had the intention to evade the registration law, the document is not necessarily invalid. In this case it is true that the District Munsif observed that 'the parties also appear to have understood it in that light.' But that was an observation made without framing an issue and without giving an opportunity to the parties to adduce evidence and cannot be accepted as a finding. Thirdly, I am of opinion that where the pleadings show that the defendant admits his position as mortgagee and the terms of the mortgage, it does not matter whether the document itself is admissible or not, and when the relation between the parties is that of mortgagor and mortgagee a suit for redemption will lie. Even as an unregistered document it may be admissible to prove what the mortgagee was prescribing For. However that may be, I am of opinion that the question has never been raised in this case.
5. The result is the District Judge's judgment is reversed and the case will go back for disposal according to law on other points. The appellant will have his costs in second appeal. Costs in the Courts below will be provided for by the District judge when he passes his decree.
6. The appellant will have refund of the Court-fee paid on second appeal.