Bapna, J. - (1.) THESE two appeals arise out of a single suit for recovery of money.
(2.) KISHANLAL instituted the present suit on 15th May, 1948, on the allegations that he had dealings with Pabudan and Kirnidan, defendants Not*. 1 and 2 and on 5th November, 1938, the previous account was taken. Some more advance was made, and the two defendants executed a Khata of Rs. 1701/-, and tor repayment of the amount, they hypothecated their one-fourth share in the income of Dakaniyawas, and their half share in Kothi Phalsawali, situated in the same village, for 17 years from Svt. 1995 to Svt. 2012, by way of baraskatti and it was stipulated that if the debtors did not permit the recovery of the income of this land in any year, he would pay Rs. 200/- for that particular year. It was alleged that Chandidan and Ramkarandan stood as sureties for the carrying out of the aforesaid agreement. It was then alleged that the plaintiff recovered the income of the hypothecated land till Svt. 2001, but thereafter the debtors did not permit the recovery of the income from the hypothecated land. The plaintiff claimed Rs. 600/- for three years, Svt. 2002, Svt. 2003 and Svt. 2004, according to the agreement. Pabudan and Karnidan denied execution of the hhata or having any dealings with the plaintiff at any time. Chandidan and Ramkarandan had both died, and their representatives, Ranmaldan son of Chandidan, and Gopal-dan son of Ramkarandan, who were made defendants in the suit, also denied the the execution of the khata or anything to do with the debt in question. A further plea was raised by both sets of defendants that the agreement amounted to a mortgage, and the document being unregistered, it was not admissible in evidence, and the agreement was not enforceable at law. Several issues were framed by the trial court, and it was held that the execution of the khata Ex. 1 tor Rs. 1701/- with Several stipulations mentioned therein had been proved to have been extecuted by Pabudan and Karnidan as debtors and by Chandidan and Ramkarandan as sureties. No specific plea as to want of consideration was taken, and there is no clear finding, but the reference to the various documents held to have been proved impliedly amount to a rinding that the consideration as alleged in the said documents had been proved Ex. 3 is an entry in the account book of the plaintiff, and shows that the previous amount due was Rs. 550/ -. Rs. 150/- were added by way of interest, and Rs. 601/- were advanced in cash on that day, and Rs. 400/- were mentioned as advanced to the debtors but were to be kept separately with the plaintiff to the purchase of articles to be utilised to the Nukta of Kaludan. Documents Ex. to 5 and 6 showed what articles were purchased for the said sum of Rs 400/ -. As a matter of fact the total amount of the articles supplied came to a little over Rs. 400/- it was held that Ex. 1, which formed the basis of the suit, was not a mortgage deed, and did not require registration and was admissible as a bond after payment of duty and penalty. The court, however, held that the plaintiff was only entitled to Rs. 100/- per annum for the disturbance of possession, but not the extra Rs 100/- per year by way of expected profit. It, however, gave the plaintiff interest at Re. 1/- p. m. on the amount due every year, and gave a decree for Rs. 376/- with costs and future interest at 6% per annum. The plaintiff filed an appeal for the sum disallowed, and the defendants filed cross-objections for setting aside the decree. Both were dismissed by the learned Additional District Judge, Jaipur, by judgment dated 6th December, 1950. The defendants have filed a second appeal, which is No. 82 of 1951. The plaintiff's appeal is No. 117 of 1951. Learned counsel for the defendants-appellants contended that the lower courts had committed error in holding that the execution of the document had been proved. It was contended in the first place that there was no evidence to prove execution, but as the arguments proceeded, the argument boiled down to a contention that the evidence proved in support of the execution of the bond was not reliable. Whether a particular document is proved to have been executed or not is a question of fact. There was undoubtedly evidence on the record of witnesses who said that the executants affixed their signatures in their presence. Then there is evidence of persons who purported to identify the signatures of the executants, and if this evidence was believed by the two lower courts, the contention that a proper appreciation was not made of this evidence cannot be successful, as a second appeal can only lie on a question of law. It was next contended that the consideration had not been proved. It was alleged that in the plaint the plaintiff had mentioned the consideration to be a sum of Rs. 700/- due on account of previous dealings, and an advance of Rs. 1001/- on the date of execution of the document. It was urged that while leading the evidence, the theory set up in the plaint was varied, and it was stated for the plaintiff that only Rs. 601/- had been advanced on that day, while keeping back a sum of Rs. 400/- for meeting the cost of articles for the Nukta of Kaludan. It was also urged that the Nukta was to take place on the 7th of November, 1938, while the documentary evidence showed expenditure of money for the articles on the 9th of November, and 14th of November, 1938. It was contended that as the Nukta was to take place on the 7th, there could be no expenditure for purchase of articles after the Nukta. The allegation in the plaint is not of a cash advance of Rs. 1001/- on 5th November, 1938, but it is said that a cash and credit advance was made of Rs. 1001/-on that date. In the statement before issues, the plaintiff made it clear that only Rs. 601/- wore advanced on that day, while he had undertaken to have goods supplied to the defendants of the value of Rs. 400/ -. The issue is also to the effect whether the debtors executed a document after making up old accounts and receiving Rs. 60l/-in cash and articles worth Rs. 400/-, and whether Chandidan and Ramkarandan undertook to become sureties for that debt. There was no variance between pleading and proof, when the plaintiff led evidence later on to the effect that Rs. 601/- only were advanced on that day and Rs. 400/- were left on account of costs of articles supplied. The entry regarding the supply of articles made a couple of days later does not make any material defect in the evidence of the plaintiff, because the entry Ex. 5, which is with respect to the cost of articles of the value of Rs. 394/12/6 says that the articles mentioned therein were supplied directly from the Bazar at Naraina. The plaintiff is a resident of Phulera, and it is possible that he made the entry after he came back from Naraina. The next entry of Rs. 9/11/9 on 14th November, 1938, is also in respect of articles which may have been supplied a few cays earlier. It was nest contended that the document, which is the basis of the suit, amounted to a mortgage deed, and as it was unregistered, it was not admissible in evidence, and its condition cannot be enforced by a suit. Learned counsel for the respondent contended that a document which may amount to a deed of mortgage, if unregistered, could still be utilised to support a claim for money, which may arise out of the undertaking to pay the amount secured by the mortgage. There is no doubt that a deed, which may amount to a deed of mortgage, even if unregistered, may be used as a bond for the purpose of founding a personal liability on the executant provided of course the claim sought to be enforced arises out of a personal undertaking to pay. In the present case, the document Ex. 1, which is the foundation of the suit, is to the following effect : - Khata of Pabudan Karnidan, sons of Kaludan, dated 5th November, 1938. Rs. 1701/ - The outstandings were Rs. 700/ -. Advanced today in connection with the Nukta of Kaludan Rs. 1000/-, making a total of Rs. 1701/-, and insecurity thereof is hypothecated our one-fourth share in village Dakaniawas and half share in Kothi Phalsawali, and give it on baraskatti of 17 years from Svt. 1995 till Svt. 2012. You (creditor) to realise the rents for this period. No interference will be made in this period. The document is not got registered. If any objection (interference) is made (by debtors) Rs. 100/-for one year and Rs. 100/-by way of expected profit, total Rs. 200/-, will be paid Chandidan and Ramkarandan stand as sureties for compliance of the aforesaid conditions by Pabudan and Kamidan. They will assist in realising the rents and will not allow the rents to be taken away, but if they so do, we will pay the money ourselves. Thumb-impression of Pabudan. Thumb-impression of Karnidan. Sd. Kalyanmal (scribe) Sd. Chandidan. Sd. Ramkarandan. " A persual of the document narrated above clearly shows that it is a document of mortgage and nothing else. The mortgage is usufructuary, inasmuch as certain property was purported to be made over to the creditor for enjoyment for a period of 17 years in satisfaction of the debt. What is claimed in the present suit is not any money which has remained outstanding on the date of the suit, but the enforcement of the terms of the mortgage to pay Rs. 100/- per year and another Rs. 100/- by way of expected profit a year. The debt did not purport to have been payable by instalments of Rs. 100/-per year, but there is an over all agreement to let the creditor remain in possession of certain property in satisfaction of the entire debt. If a transaction of mortgage becomes void, or is unenforceable, because of non-registration the consensus of authorities is that the creditor is entitled to sue for his debt. There are also authorities for the proposition that even in cafe of an unregistered mortgage, the creditor may sue for the balance of his money, in case he is dispossessed, but none of the authorities can support the present claim which is for enforcement of the mortgage arising out of a document which has not been registered. If the claim for recovery of money can be deduced from the document, as a separate matter from the condition of mortgage, or if there is a personal undertaking to pay the amount of the loan, a claim on such agreement or in such circumstances for the balance of the amount of the loan is entertain-able by the courts. In the present case the creditor has not stated what amount was really recovered from the debtors during the period he was in possession or what amount has remained outstanding if all the rents actually realised were to be taken into consideration. There is no specific agreement dividing the loan to be paid by any instalments, and the document lead as a whole purports to be a usufructuary mortgage of property for 17 years, and in case of disturbance of possession an agreement to pay Rs. 200/- a year by way of damages for such disturbance. 1 he plaintiff's claim is clearly to enforce the term of the mortgage, and the document being unregistered cannot be utilised to support or enforce the terms of the mortgage. The defendant's appeal is, therefore, allowed, the judgment and decree of the lower court are set aside, and the suit is dismissed with costs throughout. The plaintiff's appeal automatically fails and is dismissed with costs. . ;