- (1.) This appln. for leave to appeal to a D.B. was converted by me into one for review as it was stressed that I had, by dismissing appeal (No. 90 of 50) in limine on 26-5-1960 perpetuated an illegality committed by the learned Dist. J. in decreeing the pltf's. suit for redemption although the basis of the suit was an unregistered deed with respect to property of more than one hundred rupees value. The suit relates to one-fourth share of a house in village Dhilwan which had been mortgaged for Rs. 100 by Mohindar Singh to Mt. Parsini by a private deed on 8-7-1999. Mohindar Singh subsequently on 26 8-99 exchanged his property including his share in the house with that of Wasan Singh deft. (pltf. ) & thereby necessarily assigned to him the right to redeem. Mohindar Singh had in addition to his own 1/4th share, which he had inherited from his father, also become the owner through a registered instrument dated 6-4-1999 of Anr. half share of his brother Joginder Singh. Wasan Singh brought the present suit for redemption on 30-4-2003 setting out how he had acquired proprietary title in the suit pro, party & how he claimed to redeem. The deft. opposed the suit & contended that the house belonged to her son Mahadev whereupon the following two issues 1. Whether the house in dispute belonged to Mohindar Singh & he mortgaged it to Parsini & the pltf. has become its owner by an exchange deed, therefore, he is entitled to redeem it & on payment of what amount O.P. 2. Is property in suit in ownership of Mahadev Singh & what is its effect on the present suit O.P. on defts. were framed & after the parties closed their evidence the trial Ct. dismissed the suit but the learned Dist. J. has on appeal held that the mtge. dead is admissible for the collateral purpose of looking into the nature of deft.'s possession & has consequently granted a decree for redemption on payment of Rs. 100. When the deft.'s appeal came up before me on 26-6-1950 I was alive to the mistaken view of the learned Dist. J. a to the admissibility of the mtge. deed but pointed out to the deft.'s counsel that in face of the fact that the pltf. had proved his title to the property, it would serve no practical or useful purpose to convert the decree into one for possession & that in the event of its being so done the deft. would lose Rupees 100 even which had been held to be a valid charge & without paying which the pltf. would not get back the house. Mr. Jagan Nath then appeared to acquiesce in the observation & I, therefore, dismissed the appeal. In the present appln. the same plea of inadmissibility of the private mtge.-deed has been urged & it is reiterated on that basis that a decree for redemption could not be passed. Sections 17 & 49, Registration Act read with Section 91, Evidence Act, should leave no doubt that a pltf. who sues for redemption on the foot of a document which was compulsorily registerable but was not registered cannot succeed because in order to be successful it is incumbent upon him to establish the terms of the mtge. which cannot be done except with reference to the document itself. Section 91, Evidence Act, excludes other evidence of the document from being received in evidence. It is, no doubt, now a fairly well-established rule that a document of which registration is required compulsorily cannot be admitted in evidence to prove the transaction it relates to, yet it can be used for collateral purposes, for instance to see the nature of the possession of the deft., but it cannot be looked into for the purpose of establishing the mtgor.'s right to redeem as that purpose is direct & not collateral. To give it the name of a collateral purpose would be indirectly accepting the contract itself between the parties which the Registration Act opposes & does not permit. I am of the clear view, therefore, that no decree for redemption could be passed on the basis of the mtge. deed dated 8-7-1999. This, however, does not necessarily preclude the consideration of the question whether a decree for possession can otherwise be granted to the pltf. It was specified in the plaint thai the pltf. was the proprietor of the house by virtue of the exchange deed registered on 26-8-1999 & that deed was also proved by evidence as was the sale-deed in favour of Mohinder Singh dated 6-4-1999. The suit of the pltf. was one for possession by redemption & a suit for redemption of a usufructuary mtge. is substantially one for possession of the immovable property claimed. The substantive relief asked for in such cases is possession, & even if the mtge on the basis of which redemption was claimed is invalid the pltf.'s right to recover the property on the strength of his subsisting title is not lost & if nothing further would be required to be proved by him if he were driven to institute a separate possessory suit, there is no reason why he should be denied that relief in the suit for possession by redemption. Order 7, Rule 7, Code of Civil Procedure, empowers a Ct. to grant, on facts proved, relief other than what has been asked for simply or in the alternative in the plaint when it thinks just to do so to the game extent as it had been asked for. Looking at the plaint as a whole, & not disconnected portions of it, one cannot fail to be impressed, that a relief for possession independently of redemption has been claimed. The pltf. has not asked for a bigger or inconsistent relief & a decree for possession would be in accord with his claim of a proprietary mtgor, as originally laid in the plaint. It is the duty of Cts., consistently with law, to abridge litigation & avoid multiplicity of proceedings. No question of limitation, court-fee or adverse possession of the deft. would be involved if a decree for possession were granted to the pltf. Mr. Jagan Nath has, however, referred me to Dal Bahadur Singh V. Sarabjit Tiwari,1931 AIR(Oudh) 378 Daw Na Maung V. Maung Wa Maung,1941 AIR(Rang) 261 and Appamma V. Chinnaveadu, 1924 AIR(Mad) 292 but in those cases evidence of the pltf.'s title was either wanting or vague & on that account even amendment of the plaint in appeal to convert the suit for redemption into one for possession was refused. These authorities do not lay down that in a suit for redemption where the title of the pltf. has been the subject of an issue & where the pltf. has succeeded in proving his subsisting title, a decree for possession instead of one for redemption cannot be passed. While, therefore, I hold that on the foot of the unregistered mtge. deed in question, a decree for redemption cannot be passed, there is nothing that can stand in the way of the pltf. being granted a decree for possession when he has proved his title to the house independently of the mtge.
(2.) The next point that arises is whether the deft. can now ask for Rs. 100 which had been obtained by the mtgor. against the security of the house. In her written statement she denied the mtge. in her favour & set up the title of her minor son in defence. To allow Rs. 100 to her would be tantamount to holding the consideration of the mtge. as proved, & this, Section 17 read with Section 49, Registration Act, forbids.
(3.) For these reasons, I would modify the decree of the learned Dist. J. & make it one for possession instead of one for redemption & the pltf. will not be required to pay any amount to the deft. The review appln. otherwise fails & is dismissed with costs.;