Modi, J. - (1.) THIS is a second appeal by the plaintiff Barkatali in a suit for redemption of a mortgage in respect of a certain plot of land situate in the city of Udaipur, which is said to have been made by his father in Svt. 1974 in favour of the defendant respondent. The plaintiff's case was that so far as he was able to find out, the disputed land was mortgaged usufruclually for a sum of Rs. 703/- and the date of the mortgage was Jeth Vadi 13. Svt. 1974. The plaintiff further alleged that he had given a notice to the defendant for redemption, but the latter had stated in reply that the said land had been sold by the former to the latter, which was utterly false. The plaintiff, therefore, prayed for redemption on payment of a sum of Rs. 703/- or such sum as the court might find due. The defendant resisted the suit. He denied the mortgage. He further contended that the plaintiff's father Akbarali had sold the suit land to the defendant for a sum of Rs. 1,009/- by a sale-deed dated Asoj Sudi 7 Svt. 1901 (corresponding to some time in 1924 A. D.) and that the defendant was, therefore, in possession as a vendee and no question of redemption arose at all. The defendant further stated that he had spent a good deal of money by way of improvements upon the property; but as he did not raise his claim with any particularity on that point, it was not at all necessary to deal with that matter. The trial court dismissed the suit on the ground that the plaintiff had failed to prove the specific mortgage upon which he had brought his suit. It also came to the conclusion that the sale-deed railed on by the defendant though unregistered was admissible in evidence for the purpose of part-performance under sec. 53 (a) of the Transfer of Property Act, and, it was proved that the defendant held the suit property as a vendee and not as a mortgagee, and therefore the plaintiff was not entitled to recover possession of the said property. On appeal, the learned Civil Judge found that the plaintiff appellant had failed to prove that there was a subsisting mortgage at the date of the suit. On the question of part-performance, the learned Judge held that as no such plea had been taken by the defendant in the written statement, he was not entitled to succeed on that doctrine. He further gave a sort of a finding that the defendant was in adverse possession for the statutory period, and, therefore, could not be deprived of his possession of the suit property, but went on to hold that as the plaintiff had failed to prove the specific mortgage which was subsisting at the date of the suit, there was no necessity to give any finding on the question of the defendant's adverse possession, and in that view he dismissed the plaintiff's suit. THIS appeal has been preferred from the above judgment and decree.
(2.) IT was contended with great force by learned counsel on behalf of the plaintiff appellant that the courts below had looked at the case from an entirely erroneous angle and that there was sufficient material on the record to establish the mortgage set up by the plaintiff. In fact it was urged that that there was a mortgage, stood proved from the defendant's own evidence. IT was, therefore, contended that the plaintiff was entitled to a decree for redemption particularly because the deed of sale which was relied on by the defendant was unregistered and being com-pulsorily registrable, it failed of its effect and did not create any title in respect of the immovable property in question. In elaboration of his argument, learned counsel laid particular emphasis on the circumstance that the quantum of proof which the courts should expect from a mortgagor in a case like the present should not be incommensurate with the opportunity which he had of producing such evidence. IT is notorious, it was said, that a deed on mortgage was contained in a single document which remained in the possession of the mortgagee and no counterpart thereof was at all retained by the mortgagor, so that if the mortgagee held back the document, the mortgagor was naturally placed at a great disadvantage. The proposition was, therefore, advanced that the burden to prove the mortgage which initially rested with the plaintiff was not a very heavy one and had been completely discharged, and the courts below were entirely wrong in holding that the plaintiff had failed to prove the specific mortgage which he had set up in the plaint. Learned counsel relied on Raja Bishan Dutt Ram Panday vs. Narendar Bahadoor Singh (l) and Bala vs. Shiva (2 ). Turning to the facts of the case now, it was disclosed in the plaint that a mortgage had been made on a specific date viz. , Jeth Vadi 13, Svt. 1974, and that it was made for a sum of Rs 703/ -. The plaintiff produced some evidence in support of his mortgage, which however has been disbelieved by both the courts below, and ! am not prepared to differ from the lower courts in their appreciation of that evidence. That is, however, of little moment because there is material on the side of the defendant from which it is possible to come to fairly definite conclusion that such a mortgage must have been made as alleged. There is a reference in the sale-deed Ex. D-l itself to a deed for Rs. 703/- made by the plaintiff's father in favour of the defendant and his father on Svt. 1974, Jeth Vadi 13 There is no reference, however, whether this deed was a mortgage deed or not. Then there are two other documents Ex. P-2 and Ex. P-3. The first is a certified copy of an affidavit dated 14. 7. 1948 which is said to have been made by the defendant in the execution proceedings of a partition case between the plaintiff's father and some other co-owners in which this property had fallen to the share of the plaintiff's father. In this affidavit it was admitted that the suit property was mortgaged by the plaintiff Barkatali's father to the defendant, although it may be pointed out that it was further stated that the said property had been sold by Akbarali to the defendant and his father, and that their possession over it was as vendees. The other document, Ex. P-3, is a memorandum of appeal filed by the defendant in the very case referred to above. In paragraph 3 thereof, it was stated that the property in dispute had been mortgaged by Barkatali's father to the defendant in Svt. 1970 and that it had been subsequently sold to him for a sum of Rs. 1,009/ -. In these circumstances, I am unable to agree with the courts below in their finding that the plaintiff has failed to prove his mortgage which had been set up by him at the commencement of his case. This not a case where it can be legitimately said that the plaintiff had entirely failed to prove the mortgage set up by him or that having come forward with one kind of a mortgage he wanted to succeed on another kind of mortgage which had not been set up by him. That being so, I am definitely of the opinion that the principle laid down in Gouri Shankar vs. Lala (3) and Kanhiya Lal vs. Jamna Lal (4) cannot stand in the plaintiff's way. That, however, does not conclude the matter. For, in a suit for redemption of a mortgage I have no doubt that the plaintiff must not only prove the mortgage on which he relies but must further prove that that mortgage subsisted at the date he instituted his suit for redemption. See Mahadeolal vs. Pirthpal Singh (5 ). The burden that the mortgage on which the plaintiff relied was subsisting at the date of the suit obviously lies on the plaintiff. It was so placed in the present case. The question is whether he has successfully discharged it. The contention of learned counsel for the plaintiff-appellant is that he has. Having given my very careful consideration to the facts and circumstances of the present case, I have come to the conclusion that he has not. This brings me to the question of the alleged sale set up by the defendant. Much of the difficulty has arisen in the present case because the defendant failed to raise specific pleas and issues relating to his grounds of part-performance and adverse possession, although it does appear that these grounds were relied on by him during the course of the trial. The result was that the trial court held the deed of sale admissible in evidence and the sale proved on the ground of part-performance and later the lower appellate court gave a finding that he had acquired independent title by reason of adverse possession extending over the statutory period. I am opinion that neither of these pleas can be lightly allowed to be availed of by the defendant inasmuch as he never raised them in his written statement, and no issues wete at all framed relating to these points. The very reasoning on which the learned Civil Judge refused to give effect to the plea of part-performance should have deferred him from looking at the case from the angle of the adverse possession I shall, therefore, exclude both these pleas from my consideration, and I purpose to examine the case from the one and the only stand point which is fairly open to the defendant and which the plaintiff also cannot fairly evade, viz. , whether the mortgage relied upon by the plaintiff was subsisting at the date of the suit. Learned counsel for the plaintiff relies on the maxim 'once a mortgage, always a mortgage". That is true so far as it goes; but here the defendant has set up a sale. In order to prove the sale, the latter tried to prove the deed of sale which had been executed by the plaintiff's father in favour of the defendant and his father. The trial court came to the conclusion that the execution of the sale-deed was proved and the lower appellate court appears tome to have inclined to the same view although it has not given a specific finding on the point. But it seems to me that there is no reason to disbelieve the evidence led by the defendant on this point. He has produced Bhurelal who was the scribe of the deed, who says to have been Akbarali putting his thumb mark on it. Another witness Ratanlal was produced who attested the deed at the instance of Akbarali. One more witness, Abid Hussain, was produced who identified the signature of his brother Abdul Hussain who was another attesting witness to the deed. There is no rebuttal whatsoever of this evidence. It has been vehemently argued before me, however, that this document which was admittedly compulsorily registrable at the date it was executed was wholly inadmissible in evidence under sec. 49 of the Registration Act and was of no effect whatsoever to create title in favour of the defendant. It is also claimed that the plea of part performance having not been raised, it could not be admi-tted under the proviso to sec. 12. Now I have no doubt whatever that the Ex. D-l being unregistered cannot be admitted to prove a sale as such of the suit property in the defendant's favour. It can, however, in my opinion be legitimately used to show the nature and quality of his possession over the land in dispute and to which it pertains. Such a matter is really a collateral one within the meaning of sec. 49 of the Registration Act, and, therefore, I am disposed to take the view that an unregistered document may be held to be admissible as evidence of the nature and char-acter of possession held under the deed. This view finds support form numerous authorities reference among which may be made to N. Verada Pillai vs. Jeevarathanmal (6 ). There certain petitions according to a gift were he'd inadmissible owing to want of registration to prove the gift. But their Lordships of the Privy Council observed that although the said petitions were not admissible to prove the gift, they could nevertheless be referred to as explaining the nature and character of the possession thenceforth held by the donee. The same view has been taken and unregistered sale-deeds were held admissible for collateral purposes in Raja Udaram vs. Wallu (7), Davindar Singh vs. Mst. Lachhmi Devi (8), Buldeo Singh vs. Muhammad Akhtar. 9) and Umar Haji Shop vs. Badridas Ramrai Shop (10 ). There is ample authority, therefore, for the view that although the deed of sale Ex. D-l, is not admissible in the present case to prove the transaction of sale by the plaintiff's father in favour of the defendant, still it would be admissible to prove the nature any quality of the possession taken by the latter under it, and it would be perfectly legitimate to look at the date of the deed for the commencement of such possession. The deed, as already stated above, was executed some time in Svt. 1981 (corresponding to 1924 A. D. ', good 25 years before the plaintiff brought his present suit. A perusal of the deed shows, beyond any manner of doubt, that the defendant's possession of the land in dispute was and henceforward would be in his own right and not on behalf of any body else. It may not be out of place to make a reference to Exs. P-2 and P. 3 on which the plaintiff has placed reliance in order to prove the mortgage against the defendant. It is true that these documents speak of the defendant holding the land as a mortgagee to start with, but it would be wrong both in law and common-sense to dissect the statements made there with regard to the mortgage from their context where it is further mentioned that at the time the statements came to be made the defendant held the property as a vendee and not as a mortgagee. It is not open to a party to split up a statement and pick out a portion which may he favourable to him and ignore the rest. Reference may be made in support of this view of Jwala Das vs. Pir Sant Das (11 ). It is true that a court may believe a part of such a statement and discard the rest, but that depends upon the circumstances of each case. I see no reason to disbelieve that part of the defendant's statement which relates to sale in the present case, and there is no material which may legitimately induce ore to do so. The two witnesses produced by the plaintiff although they said something about the mortgage merely said that they had no knowledge whether the plaintiff's father had made any sale in favour of the defendant. The plaintiff himself came into the witness box but had not a word to say about the sale on which there was a tremendous controversy at the trial. In fact, nothing has been brought forth on the side of the plaintiff to show that the defendant's version as to the character of his possession in respect of the suit property being of a vendee from 1924 A D. is false. In these circumstances, I have no alternative but to hold that the plaintiff has failed to prove that the mortgage set up by him was subsisting at the date of the suit, and therefore no question of redemption can arise. The result is that I hereby dismiss this appeal with costs. .;